People v Bazile

[*1] People v Bazile 2008 NY Slip Op 52582(U) [22 Misc 3d 1102(A)] Decided on December 19, 2008 Criminal Court Of The City Of New York, Queens County Lopresto, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 19, 2008
Criminal Court of the City of New York, Queens County

The People of the State of New York

against

Michael Bazile, Defendant



2008QN015555

Charles S. Lopresto, J.

The People move for an order, pursuant to CPLR § 2221, granting leave to reargue this Court's decision and order dated July 31, 2008, which dismissed the accusatory instrument for facial insufficiency, and upon reargument, denying the motion to dismiss. Defendant opposes the motion.

Defendant Michael Bazile is charged with Criminal Trespass in the Third Degree (PL § 140.10[e].) 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 where the building is used as a public housing project in violation of conspicuously posted rules or regulations governing entry and use thereof. (PL § 140.10[e].)"[E]nter or remain unlawfully" is defined, in relevant part, as follows: "A person enters or remains unlawfully' in or upon premises when he is not licensed or privileged to do so." (PL § 140.00[5].)

By decision and order dated July 31, 2008, this Court dismissed the charge for facial insufficiency on the basis that the accusatory instrument failed to allege facts to support the assertion that defendant "had no legitimate purpose for being in said location" and that therefore, the element "enters or remains unlawfully" had not been established. (CPL §§ 100.15 and 100.40.)

The People posit that they are entitled to reargument, relying on the decision, People v Holder, 2001 NY Slip Op 40559U [App Term 2d & 11th Jud Dists].) In that unreported decision, the Appellate Term reversed an unpublished decision, People v Holder, Docket. No. 2000QN027447 [Crim Court, Queens County, Mullings J., May 30, 2000] which granted a motion to dismiss the charge of Criminal Trespass in the Third Degree. The Criminal Court had dismissed the charge as facially insufficient on the basis that "[t]he factual part of the accusatory instrument contains conclusory allegations as to an element of the crime, namely that the defendant knowingly entered or remained unlawfully in a building." The Appellate Term reversed, as follows:

The subject accusatory instrument charging the crime of criminal trespass in the third degree ( Penal Law § 140.10[e]), together with its supporting deposition, was facially sufficient (see, ibid; CPL 100.15, 100.40). We note that the factual allegations should be given a fair and not overly [*2]restrictive or technical reading where, as in the case at bar, they "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" (People v Casey, 95 NY2d 354, 360, 717 NYS2d 88, 740 N.E.2d 233).

Defendant opposes the motion for reargument, arguing that the accusatory instrument is insufficient on its face as there are no factual allegations from which one could reasonably infer that defendant was not lawfully in the premises upon which he is alleged to have been trespassing. Defendant avers that it is the People's burden to allege and establish a lack of license or privilege, and this they have not done. It is defendant's contention that without such factual allegations, all visitors would be subject to arrest and criminal prosecution.

The problem with the People's argument that the Appellate Term decision, People v Holder, supra, holds that an accusatory instrument charging Criminal Trespass need not allege factual allegations as to a defendant's lack of license or privilege to be facially sufficient, is that said decision does not so state. In order to reach that conclusion, the Appellate Term decision must be read not only in conjunction with the unreported Criminal Court decision, but also with the accusatory instrument from that Criminal Court case.

In another unreported decision, People v Flores, (2008 NY Slip Op 52371U [App Term 2d & 11th Jud Dists]) the Appellate Term found that an information charging Criminal Trespass in the Third Degree (PL § 140.10[e]) was facially sufficient, as follows:

Here, the accusatory instrument specifically alleged that the building was a public housing project; defendant was present in the building and was observed leaving the building; defendant's presence in the building was in violation of posted rules and regulations, and defendant did not have permission to enter or remain in the building.

This more recent decision appears to be in accord with the People's argument, based on People v Holder, that an accusatory instrument charging Criminal Trespass in the Third Degree is facially sufficient so long as it alleges that a defendant did not have permission to enter or remain in the building, and that it need not allege any additional facts as to a defendant's license or privilege. Moreover, People v Flores, does not seem to require any more than the allegation that a defendant does not have permission to enter or remain in the building in order to establish the element "enters or remains unlawfully." (Id.)

It is noted that the Appellate Term, First Judicial Department takes a different approach to the pleading requirement for the charge of Criminal Trespass in the Third Degree. (PL § 140.10.) The Appellate Term, First Department has consistently cited the Appellate Division, Second Department decision, People v Babarcich, when determining whether the factual allegations are facially sufficient to establish the "knowingly enters or remains unlawfully" element of the charge [*3]of Criminal Trespass in the Third Degree. (People v Babarcich, 166 AD2d 655 [2d Dept 1990]; lv app den 76 NY2d 1019 [once defendant lied about the reason for his presence and failed to offer any legitimate explanation for it, the officer was justified in concluding that the defendant in fact had no privilege to be on the premises]; People v McCray, 21 Misc 3d 127A [App Term 1st Dept 2008][defendant initially stated that he was on his way to visit an unnamed "friend", who, defendant admitted, lived at a different address; and that defendant was otherwise unable to explain his presence inside the building]; People v Johnson, 8 Misc 3d 137A lv app den 5 NY2d 853 [2005][defendant acknowledged that he lived elsewhere and indicated that he was in the building to visit an individual who was not present in the apartment or listed on the tenant's roster]; People v Darling, 8 Misc 3d 125A [App Term 1st Dept 2005][defendant acknowledged that he lived elsewhere, and although stating that he was in the building to visit an individual identified only as "Eddie," was unable to identify Eddie's apartment number; and that no person named Eddie was listed on the building's tenant roster]; People v Quinones, 2002 NY Slip Op 50019U [App Term 1st Dept]; lv app den 98 NY2d 680 [2002][defendant stated he did not live in the building; and that defendant, although stating that he was in the building to visit his "good friend," was unable to identify the friend's surname or apartment number].)

Thus, there is a divergence in the decisional law of the Appellate Term First Judicial Department and the Appellate Term, Second and Eleventh Judicial Districts, on the issue of facial sufficiency as to the pleading requirements for the "knowingly enters or remains unlawfully" element of the charge of Criminal Trespass in the Third Degree. Nevertheless, the Appellate Term Second and Eleventh Judicial Districts is this Court's appellate court. (NY Const Art VI § 8; 22 NYCRR § 730.1.)

Accordingly, as the Appellate Term of this Judicial District has held that an accusatory instrument is facially sufficient as to the element "enters or remains unlawfully," if it alleges that a defendant did not have permission to enter or remain in the building, and as the accusatory instrument in the instant case so alleges, the People's motion for reargument is granted. (People v Flores, supra.)

Based on the foregoing and upon reargument, this Court reverses it's earlier determination, and defendant's motion to dismiss for facial insufficiency is denied.

The action is restored to the calendar as of today's date and adjourned to Friday January 9, 2009, at 9:30AM in Part AP-2 for further proceedings.

The remaining requests for relief in defendant's omnibus motion which were not decided in the earlier decision, are now decided as follows:

SANDOVAL APPLICATION

The Sandoval motion is referred to the trial court for decision. (CPL § 240.43; People v Sandoval 34 NY2d 371 [1974].) Disclosure of the prior bad act evidence which the People will seek [*4]to introduce at trial for purposes of impeaching defendant's credibility, shall be made in accordance with the time frame set forth in CPL § 240.43.

SUPPRESSION OF STATEMENT EVIDENCE

Defendant's motion to suppress statement evidence is denied as moot. The People indicate in their Affirmation in Opposition to defendant's motion that they are unaware of any statements made by defendant pursuant to CPL § 710.30(1)(a).

SUPPRESSION OF IDENTIFICATION EVIDENCE

The motion to preclude identification evidence is denied as moot since the People indicate in their Affirmation in Opposition that they do not intend to introduce, in their direct case at trial, evidence of a prior identification within the meaning of CPL § 710.30(1)(b).

RESERVATION OF RIGHTS

Defendant's motion to reserve the right to make further motions is granted on the consent of the People to the extent permitted by CPL § 255.30(3).

This constitutes the decision and order of the court.

Dated:December 19, 2008 Kew Gardens, New YorkCharles S. Lopresto

Judge of the Criminal Court