People v Barnes (Shatava)

[*1] People v Barnes (Shatava) 2015 NY Slip Op 50034(U) Decided on January 6, 2015 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 6, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : ALIOTTA, J.P., PESCE and SOLOMON, JJ.
2012-799 K CR

The People of the State of New York, Respondent,

against

Shatava Barnes, Appellant.

Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Debra Silber, J.), rendered March 4, 2012. The judgment convicted defendant, upon her plea of guilty, of criminal trespass in the third degree.

ORDERED that the judgment of conviction is reversed, on the law, and, as a matter of discretion in the interest of justice, the accusatory instrument is dismissed.

On March 2, 2012, defendant was arrested and charged with criminal trespass in the third degree (Penal Law § 140.10 [e]) and trespass (Penal Law § 140.05), after a police officer observed her in a New York Housing Authority apartment building. On March 4, 2012, defendant pleaded guilty to criminal trespass in the third degree, in satisfaction of both charges, and was sentenced to time served.

Contrary to defendant's contention, the information, consisting of a misdemeanor complaint and a supporting deposition, contained sufficient factual allegations to support the charges of criminal trespass in the third degree and trespass (see CPL 100.15 [3]; 100.40 [1] [b], [c]; 170.65 [1]; People v Kalin, 12 NY3d 225, 229-230 [2009]; People v Jones, 9 NY3d 259, 262 [2007]; People v Norales, 88 AD3d 499 [2011]; People v Flores, 21 Misc 3d 141[A], 2008 NY Slip Op 52371[U] [App Term, 2d & 11th Jud Dists 2008]; cf. People v O'Leary, 41 Misc 3d 144[A], 2013 NY Slip Op 52060[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). An accusatory instrument charging a defendant with criminal trespass in the third degree under Penal Law § 140.10 (e) need not allege facts negating the possibility that the defendant was an invited guest of a Housing Authority tenant. Such a requirement would compel the People to obtain a supporting deposition from each of the tenants confirming that defendant had not been invited into the building (see People v Messina, 32 Misc 3d 318, 325-326 [Crim Ct, Kings County 2011]). The People would have "to go to intolerable lengths' " to comply with such mandates (People v Davis, 13 NY3d 17, 32 [2009], quoting People v Devinny, 227 NY 397, 401 [1919]). Nor must such an accusatory instrument allege facts pinpointing the exact location in the building where no trespassing or similar signs are conspicuously posted (People v Messina, 32 Misc 3d at 328; see People v Siton, 29 Misc 3d 438, 439 [Crim Ct, Kings County 2010]; People v Mackey, 16 Misc 3d 398, 400 [Crim Ct, Kings County 2007]).

Defendant's contention that the information was facially insufficient due to a divergence between the factual allegations in the accusatory instrument and those set forth in the supporting deposition is without merit. Nonhearsay allegations taken "from either or both the complaint and [*2]the supporting deposition may make out the element of the crime charged" (People v Modica, 187 Misc 2d 635, 636 [Crim Ct, Richmond County 2001]; see People v Ellis, 31 Misc 3d 1213[A], 2011 NY Slip Op 50666[U] [Crim Ct, Kings County 2011], affd 40 Misc 3d 141[A], 2013 NY Slip Op 51506[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; People v Salamone, 24 Misc 3d 1213[A], 2009 NY Slip Op 51445[U] [Crim Ct, NY County 2009]).

However, defendant's conviction must be reversed, as defendant's plea allocution contained no discussion whatsoever of any of the constitutional rights she was waiving by pleading guilty, and there is no indication that defendant spoke with her attorney regarding the constitutional consequences of taking the plea (see People v Tyrell, 22 NY3d 359 [2013]; People v Miller, 113 AD3d 573, 573-574 [2014]; People v Green, 43 Misc 3d 141[A], 2014 NY Slip Op 50815[U] [App Term, 9th & 10th Jud Dists 2014]; cf. People v Perez, 116 AD3d 511, 511-512 [2014]; People v Jackson, 114 AD3d 807, 807-808 [2014]).

Furthermore, as a matter of discretion in the interest of justice, we dismiss the accusatory instrument, since defendant has completed her sentence and no penological purpose would be served by reinstating the proceedings (see People v Green, 43 Misc 3d 141[A], 2014 NY Slip Op 50815[U]; People v Domin, 42 Misc 3d 149[A], 2014 NY Slip Op 50403[U] [App Term, 9th & 10th Jud Dists 2014]; People v Facey, 30 Misc 3d 138[A], 2011 NY Slip Op 50224[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed.

Aliotta, J.P., Pesce and Solomon, JJ., concur.

Decision Date: January 06, 2015