People v Davion T.

[*1] People v Davion T. 2018 NY Slip Op 51672(U) Decided on November 27, 2018 Appellate Term, First Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 27, 2018
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, P.J., Cooper, Edmead, J.J.
570292/17

The People of the State of New York, Respondent,

against

Davion T., Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Ann E. Scherzer, J.), rendered April 6, 2017, convicting him, after a nonjury trial, of criminal trespass in the third degree and possession of a box cutter in public place by a person under 21, and imposing sentence.

Per Curiam.

Judgment of conviction (Ann E. Scherzer, J.), rendered April 6, 2017, modified, on the law, to vacate defendant's conviction of possession of a box cutter in a public place by a person under 21 and to dismiss the count of the accusatory instrument relating thereto and, as modified, affirmed.

With respect to the conviction of third-degree criminal trespass, the accusatory instrument was not jurisdictionally defective. Allegations that defendant entered the subway station "beyond the turnstiles, which is an area enclosed by the turnstiles and gates in a manner designed to exclude those who do not pay the required fare, by jumping over the turnstiles" and that "defendant did not have permission or authority to enter beyond the turnstiles without paying," were facially sufficient to support the charged offense (see People v Phillips, 53 Misc 3d 151[A], 2016 NY Slip Op 51693[U] [App Term, 1st Dept 2016], lv denied 28 NY3d 1149 [2017]).

With respect to the conviction of possession of a box cutter in a public place by a person under 21 (see New York City Administrative Code § 10-134.1[e]), we agree with defendant that the accusatory instrument was jurisdictionally defective. The instrument failed to contain nonhearsay allegations to support an essential element of the offense, namely, that defendant was a "person under twenty-one years of age" when he allegedly possessed the box cutter in a public place (Administrative Code § 10-134.1[e]; see generally Matter of Devon V., 83 AD3d 469 [2011]). Contrary to the People's claim, the mere "(M17)" notation next to defendant's name in the caption of the accusatory instrument was not a nonhearsay evidentiary fact establishing the age element of the offense (see CPL 100.40[1][c]).

In view of our disposition, we need not reach defendant's remaining contention.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: November 27, 2018