People v Crespi

[*1] People v Crespi 2017 NY Slip Op 50056(U) Decided on January 13, 2017 Criminal Court Of The City Of New York, New York County Cesare, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 13, 2017
Criminal Court of the City of New York, New York County

The People of the State of New York

against

Bonacio Crespi, Defendant



2016NY053256



For the Defendant:

Neighborhood Defender Service of Harlem(Michelle Villasenor-Grant, Esq., of counsel)For the People:

Cyrus R. Vance, Jr., District Attorney, New York County(Roy Chon, Esq., of Counsel)
Heidi C. Cesare, J.

The defendant, Bonacio Crespi, is charged in a three count information with resisting arrest (Penal Law § 205.30) (count one), criminal trespass in the third degree (Penal Law § 140.10 [a]) (count two), and unlawful possession of marihuana (Penal Law § 221.05) (count three). Defendant moves to dismiss counts one and two on the ground the charges are facially insufficient (Criminal Procedure Law §§ 170.30, 170.35 and 100.40). For the reasons stated below, defendant's motion is GRANTED.[FN1]

Defendant contends that the charge of criminal trespass in the third degree should be dismissed because the information fails to sufficiently allege that defendant's presence in a certain playground was unlawful. Defendant further contends that the charge of resisting arrest should be dismissed because the information fails to sufficiently allege that he resisted an authorized arrest. The People counter that the factual allegations provide reasonable cause to believe that defendant remained unlawfully in the playground and also that the police had probable cause to arrest the defendant for possession of a gambling device (Penal Law § 225.30) and criminal trespass in the third degree (Penal Law § 140.10 [a]). In both respects, the court finds for the defendant.

The Allegations

The accusatory instrument sworn out by Police Officer Laborde, states that on September 3, 2016, at about 2:50 a.m. in front of 80 East 110th Street the following occurred:

"I observed the defendant and several apprehended others together standing in a playground, which is enclosed by a fence, in front of the above location, an apartment building within the purview of the New York City Housing Authority."I observed the defendant holding currency in one hand and three dice in his other hand. I then observed the defendant shaking the dice."I was in full uniform, and when I approached the defendant and asked him to come over to speak with me to place him under arrest for the above described conduct, I observed the defendant turn his body and run away from me. I then observed the defendant run to Madison Avenue and down two blocks, crossing into oncoming traffic which caused at least one vehicle to make a sudden stop to avoid hitting the defendant. The defendant's conduct made it difficult for me to place him under arrest."I caught up with defendant and arrested him across from 22 East 108th Street."I recovered a pair of dice from the defendant's hands."I also recovered three plastic bags of marijuana from the defendant's backpack."I have examined the substance described above as marijuana and have determined that it is in fact marijuana. This determination is based on my professional training as a police officer in the identification of marijuana, my prior experience as a police officer making drug arrests, and the odor emanating from the substance, which is characteristic of marijuana."The defendant stated to me, in substance, that he does not live at 80 East 110th Street."As a member of the New York Police Department, I am a custodian of the above mentioned apartment building, and the defendant did not have permission or authority to enter or remain in the playground attached to the apartment building."

Facial Sufficiency

A facially sufficient information must contain non-hearsay, non-conclusory factual allegations providing reasonable cause to believe that the People can prove every element of the crime charged (CPL 100.40 [1] [b], [c]; People v Alejandro, 70 NY2d 133 [1988]; People v Dumas, 68 NY2d 729 [1986]). A court reviewing for facial sufficiency must assume that the factual allegations contained in the information are true and must consider all reasonable inferences that may be drawn from them (People v Jackson, 18 NY3d 738, 741 [2012]; see CPL 100.40 [1] [c]). Further, "[s]o long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 [2000]).

Criminal Trespass in the Third Degree

A person is guilty of criminal trespass in the third degree when he "knowingly enters or remains unlawfully in a building or upon real property which is fenced or otherwise enclosed in a manner designed to exclude intruders" (Penal Law § 140.10 [a]). "A person enters or remains unlawfully in or upon premises when he is not licensed or privileged to do so" (Penal Law § 140.00 [5]). "When [a] property is 'open to the public' at the time of the alleged trespass . . . the accused is presumed to have a license and privilege to be present" (People v Leonard, 62 NY2d 404, 408 [1984] [holding that the defendant could not be banished from a State University of New York campus, a publicly-owned and maintained property, absent proof of a lawful order excluding him from the premises]). In order to be facially sufficient, the accusatory instrument must provide non-hearsay, non-conclusory factual allegations establishing the following two elements: (1) defendant unlawfully entered or remained upon real property which was fenced or otherwise enclosed in a manner designed to exclude intruders and (2) defendant did so knowingly (CJI2d[NY] Penal Law § 140.10[a]).

The pertinent allegations here are that, at about 2:50 a.m. on September 3, 2016, defendant was in a playground that was enclosed by a fence and located in front of an apartment building within the purview of the New York City Housing Authority. As a member of the New York City Police Department, the deponent officer was a custodian of the apartment building. According to deponent officer the defendant "did not have permission and authority to enter or remain in the playground attached to the apartment building." After his arrest, defendant told the [*2]deponent officer that he did not live in the apartment building.

Public playgrounds, big and small, may be found all over the City of New York. The allegation that defendant was observed inside a playground that was enclosed by a fence does not permit a reasonable inference that defendant's presence inside the playground was unlawful. A Fence may serve many purposes. In the case of a playground, a fence may be designed to secure children and confine play activity. Whether the fencing around a place is designed to exclude intruders depends on the facts and circumstances of each place. Absent additional facts, the court may not reasonably infer that the fence around the playground referenced in the information was designed to exclude intruders.

The allegation that the playground was "in front of" or "attached to" a New York City Housing Authority apartment building does not permit an inference that the playground was designed for the exclusive use of building residents or that the deponent officer was a custodian of the playground. Mere proximity to an apartment building will not support the inference that the playground was within the curtilage of the apartment building, or that the playground was closed to the public. Notably, the information is mute as to whether any signs appeared at the entrances to the playground indicating any such restriction. Absent any additional facts, the court may not reasonably infer that the playground was closed to the public.

Further, the allegation that the defendant was found in the playground at 2:50 a.m. does not permit a reasonable inference the defendant's presence in the playground was unlawful. Notably, the information is mute as to whether the playground entrances were closed or locked or whether any signs posted at the playground indicated the hours of operation. Absent any factual allegations indicating that the playground was closed at 2:50 a.m., the court finds no basis to so infer.

For the foregoing reasons, the court finds that the deponent officer's statement that defendant "did not have permission and authority to enter or remain in the playground" is conclusory. The conclusory statement that defendant did not have permission or authority to enter or remain in the playground fails to satisfy the reasonable cause requirement (see People v Dumas, 68 NY2d 729, 731 [1986]). The court therefore finds that the charge of criminal trespass in the third degree (Penal Law § 140.10 [a]) (count two) is facially insufficient.

Resisting Arrest

A person is guilty of resisting arrest when "he intentionally prevents or attempts to prevent a police officer or peace officer from effecting an authorized arrest of himself or another person" (Penal Law § 205.30). To be facially sufficient, an accusatory instrument must allege facts that establish the following two elements: (1) defendant prevented or attempted to prevent a police officer from effectuating an authorized arrest; and (2) he did so intentionally (CJI2d[NY] Penal Law § 205.30). Failure to set forth factual allegations establishing probable cause for an authorized arrest requires dismissal (People v Alejandro, 70 NY2d 133, 135 [1987]).

The People argue that the charge of resisting arrest is facially sufficient despite any defects in count two (see above) because the information sets forth factual allegations establishing probable cause to arrest for the charge of possession of a gambling device (Penal Law § 225.30 [a][2]). They assert that the fact that the defendant was not ultimately charged with that crime has no impact on the facial sufficiency of count one.

An information charging resisting arrest need not include a charge for the underlying offense so long as it contains factual allegations establishing that the arrest was authorized (see People v Thomas, 239 AD2d 246, 247 [1st Dept 1997], lv. denied 90 NY2d 911 [1997]).

A person is guilty of possession of a gambling device when "with knowledge of the character thereof, he or she manufactures, sells, transports, places or possesses, or conducts or negotiates any transaction affecting or designed to affect ownership, custody or use of any other gambling device, believing that the same is to be used in the advancement of unlawful gambling activity" (Penal Law § 225.30 [a][2]). A person advances gambling activity "when acting other [*3]than as a player, he engages in conduct which materially aids any form of gambling activity" (Penal Law § 225.00 [4]). A player is "a person who engages in any form of gambling solely as a contestant or bettor, without receiving or becoming entitled to receive any profit therefrom other than personal gambling winnings, and without otherwise rendering any material assistance to the establishment, conduct or operation of the particular gambling activity" (Penal Law § 225.00 [3]).

Here, the pertinent factual allegations are that the deponent officer observed the defendant and several other people standing inside a certain playground. The officer observed the defendant was holding money in one hand and shaking dice in the other hand. When the officer, who was dressed in full uniform, approached the defendant to ask a question and place defendant under arrest, the defendant fled. The defendant's conduct and made it difficult for the officer to arrest the defendant.

In Matter of Victor M. (9 NY3d 84, 87 [2007]), The Court of Appeals held that Penal Law § 225.30[a][2] "cannot fairly be read to apply to every player in a dice game who touches the dice." Defendant's alleged actions, which are substantially similar to those observed in Victor M., are consistent with the actions of a player in a dice game. On these facts alone the court may not reasonably infer that defendant's involvement in the game rose to the level of advancing gambling activity.

The People argue that defendant's flight supports an inference that defendant's arrest was authorized. The court, however, declines to draw this inference noting the Court of Appeals' precedential holding in People v Howard (50 NY2d 583 [1980]):

"An individual to whom a police officer addresses a question has a constitutional right not to respond. He may remain silent or walk or run away. His refusal to answer is not a crime. Though the police officer may endeavor to complete the interrogation, he may not pursue, absent probable cause to believe that the individual has committed, is committing, or is about to commit a crime, seize or search the individual or his possessions, even though he ran away."

For the foregoing reasons the court finds that the present information fails to sufficiently allege an authorized arrest, either for possession of a gambling device (Penal Law § 225.30) or for criminal trespass in the third degree (Penal Law § 140.10 [a]). The court finds that the charge of resisting arrest (Penal Law § 205.30) (count one) is facially insufficient.

Conclusion

Counts one and two are dismissed for facial insufficiency. This constitutes the decision and order of the court.

Dated: January 13, 2017

New York, New York

_______________________

Heidi C. Cesare, J.C.C. Footnotes

Footnote 1:In evaluating defendant's motion, the court has considered all submissions by the parties, all documents in the court file, and all relevant cases and statutes.