People v Rivera

[*1] People v Rivera 2015 NY Slip Op 51279(U) Decided on August 12, 2015 Criminal Court Of The City Of New York, Bronx County Montano, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 12, 2015
Criminal Court of the City of New York, Bronx County

The People of the State of New York,

against

Luis Rivera, Defendant.



2015BX021263



The People — Robert T. Johnson, District Attorney, Bronx County by Shera Knight, Assistant District Attorney

Defendant — William Sacks, Esq.
Armando Montano, J.

Defendant is charged with Criminal Trespass in the Second Degree (PL § 140.10), Criminal Trespass in the Third Degree (PL § 140.15), and Trespass (PL § 140.05).

Defendant moves for an order 1) dismissing the complaint as facially insufficient and 2) suppressing statements pursuant to CPL. § 710.20, or in the alternative, granting a hearing to determine the admissibility of such statements.

The factual allegations in the complaint, sworn to by Police Officer Rodolfo Monegro, read as follows:

Deponent states that [on or about March 17, 2015 at approximately 9:31 PM inside of 381 East 151 Street, County of the Bronx, State of New York, he] responded to a phone call for trespassing inside the above location a Clean Hall apartment building and upon arrival he observed defendants on the lobby of said location and further observed said location to have a conspicuously post [sic] sign indicating NO TRESPASSING CLEAN HALLS LOCATION, locked entrance doors and buzzer entry system.Deponent further states that he asked defendants if they live in the building and defendant Rivera stated in sum and substance: WE DO NOT LIVE HERE, WE ARE VISITING, defendant Otero stated in sum and substance: I'M WITH HIM (pointing to defendant Rivera). Deponent further states that he asked defendant Rivera who did they come to visit and can he verify and defendant Rivera stated in sum and substance: I CANNOT VERIFY BECAUSE I CAME TO SEE EVERYONE IN THE BUILDING. Deponent further states that he asked defendant Rivera to pick an apartment to verify that [*2]they are visiting someone and defendant Rivera stated in sum and substance: I DON'T WANT TO MAKE IT HOT. Deponent further states that he repeatedly asked defendant Rivera to pick an apartment to verify that they visiting someone and defendant Rivera stated in sum and substance: I DON'T WANT TO MAKE IT HOT and defendant Montalvo remained silent during all questioning.Deponent further states, that he has reviewed a notarized Clean Halls Affidavit signed by Mary C. Ramirez the owner/managing agent of said location, which is on file with the New York City Police Department and said Clean Halls Affidavit authorizes the New York City Police Department to arrest individuals that are not tenants of the location or invited guests.Deponent further states that neither defendant was able to provide the name of any tenant, an apartment number or a legitimate purpose for their presence inside said location. Deponent further states that based on the aforementioned facts the defendants were neither tenants nor invitees, and did not have permission or authority to enter or remain inside said location, which is a dwelling.

Motion to Dismiss

Defendant argues that the complaint must be dismissed as facially insufficient because the complaint fails to allege any facts specifying the length of time that the officer observed defendant inside the building. Therefore, defendant maintains that his presence may been transitory which would fail to establish that he entered and remained unlawfully in the building.

Defendant also asserts that the complaint fails to set forth any facts demonstrating that he lacked permission to be in the building. Despite having no obligation to offer an explanation as to his presence in the building, defendant notes that he told the officer that he knew everyone in the building and he was visiting a friend. Citing Matter of James C., 23 AD3d 262 (1st Dept. 2005) and Matter of Daniel B., 2 AD3d 440 (2d Dept. 2003), defendant argues that the officer's conclusion that his proffered explanation of visiting a friend did not constitute a legitimate reason to be in the building is insufficient to prove that he did not have permission to be in the building. Defendant further argues that his failure to provide the last name or the apartment number of the person he was visiting does not demonstrate that he did not have permission to be in the building.

In opposition, the People maintain that the information before the court is facially sufficient for all offenses charged for the following reasons: 1) a Clean Halls apartment building is a both a "dwelling" and a building enclosed in a manner designed to exclude intruders pursuant to PL §§ 140.15 and 140.10, respectively; 2) the length of time the officer observed defendant in the building is irrelevant; and 3) the burden is not on the People to disprove every possible explanation for a defendant's presence in a building.

It is well settled that an accusatory instrument must contain facts of an evidentiary nature that support or tend to support the crimes charged (CPL § 100.15(3); People v. Dumas, 68 NY2d 729 [1986]) and contain non-hearsay allegations that establish, if true, every element of the crimes charged (CPL § 100.40[1][c]). Further, an accusatory instrument must provide reasonable cause to believe that the defendant committed the crimes charged. CPL § 100.40(1)(b); Dumas, 68 NY2d 729. Reasonable cause to believe that a defendant committed [*3]the crimes charged "exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it." CPL § 70.10. "In order for the reasonable cause standard to be met, the factual portion of the accusatory instrument must describe conduct that constitutes the crime charged." People v. Hightower, 18 NY3d 249, 254 (2011).

In reviewing an accusatory instrument for facial sufficiency, the court must assume the truth of the factual allegations and consider all favorable inferences drawn therefrom. CPL §§ 100.40 and 100.15; People v. Mellish, 4 Misc 3d 1013(A) (Crim Ct, NY County 2004). The facts alleged need only establish the existence of a prima facie case, even if those facts would be insufficient to establish guilt beyond a reasonable doubt. People v. Jennings, 69 NY2d 103 (1986). Moreover, "the Court is not required to ignore common sense or the significance of the conduct alleged." People v. Gonzalez, 184 Misc 2d 262, 264 (App Term, 1st Dept. 2000) quoting People v. Abdul, 157 Misc 2d 511, 514 (Crim Ct, NY County 1993).

A person is guilty of Criminal Trespass in the Second Degree when "he or she knowingly enters or remains unlawfully in a dwelling [FN1] ." PL § 140.15(1). 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." PL § 140.10(a). A person is guilty of Trespass when "he knowingly enters or remains unlawfully in or upon premises." PL § 140.05.

It is undisputed that the apartment building in which defendant was found constitutes a "dwelling" pursuant to PL § 140.15(1). "It is clear that common hallways and lobbies of residential buildings with multiple units are dwellings within the meaning of the statute." People v. Taveras, 17 Misc 3d 1119(A), at *4 (Crim Ct, NY County 2007). Buildings that have been considered dwellings include apartment buildings with locked entrances equipped with a buzzer and intercom system, as well those with posted "No Trespassing" signs. People v. Torres, 162 AD2d 385, 386 (1st Dept. 1990); People v. Maissonet, 304 AD2d 674 (2d Dept. 2003). Not only is the subject apartment building identified by the deponent as a dwelling, the building is also alleged to have a conspicuously posted "No Trespassing Clean Halls Location" sign, locked entrance doors, and a buzzer entry system. Therefore, this court finds that the subject premises is a dwelling within the meaning of PL § 140.15(1).

All three of the offenses charged include the essential element of a defendant knowingly [FN2] entering or remaining unlawfully upon the type of property specified in the particular charge. "A person enters or remains unlawfully' in or upon premises when he is not licensed or privileged to do so." PL § 140.00(5). "In general, a person is licensed or privileged to enter a private premises when he has obtained the consent of the owner or another whose [*4]relationship to the premises gives him authority to issue such consent." People v. Graves, 76 NY2d 16, 20 (1990). Where such license or privilege is absent, a person is generally presumed to have entered or remained unlawfully. See, People v. Brown, 25 NY2d 374 (1975). To support these charges, the People must assert sufficient non-hearsay allegations supporting that the defendant was knowingly present where he was not welcome. See, People v. Outlar, 177 Misc 2d 620 (Crim Ct, NY County 1998).

Defendant's argument that there are no facts that allege that he both entered and remained unlawfully in the building is without merit. The trespass statutes does not require a showing that a defendant both entered and remained unlawfully upon the type of property specified. Whether defendant's presence in the building was fleeting or prolonged has no bearing on the facial sufficiency of the instant accusatory instrument.

In People v. Richardson, 35 Misc 3d 1231(A) (Crim Ct, NY County 2012), the defendant was observed by an officer inside the lobby of a New York City Housing Authority ("NYCHA") building beyond the vestibule and a posted sign which read, "No Trespassing". The information alleged that the defendant provided an address different from the NYCHA building in which he was found and he was unable to provide the identity of a resident of whom defendant was an invited guest. In challenging the facial sufficiency the trespass charge, the defendant argued that the information failed to provide sufficient non-hearsay allegations establishing that he was not an invited guest. In denying the defendant's motion to dismiss the trespass charge, the court held that:

[T]he issue of whether defendant was, in fact, an invited guest to the dwelling, and therefore enjoyed a privilege or license to enter the apartment building beyond the vestibule constitutes a proviso [FN3], rather than an exception to the trespass statute. As such, defendant is required to raise this issue as a bar to the instant prosecution, but it is not necessary that the accusatory instrument negate the possibility of defendant's privilege or license to [enter or] remain on said premises at the pleading stage. Id. at *5.

The facts in the instant case are analogous. Here, defendant similarly argues that "[t]he mere fact that [he] did [not] know the last name or apartment number of the person he was visiting does not disprove that defendant as not in the building to visits a friend nor that the defendant did not have permission to go to the friend's apartment." Affirmation of defendant's counsel, at 3.

First, this court finds that defendant's reliance on Daniel B. and James C. is misplaced as these cases dealt with the legal sufficiency of evidence presented at a fact finding hearing in a juvenile delinquency proceeding. Second, this court rejects defendant's argument and finds that the allegations that defendant admitted to residing elsewhere and that he was unable to provide the identity of any resident of whom he was an invited guest are sufficient to establish [*5]reasonable cause to believe that defendant lacked a license or privilege to enter or remain at the subject apartment building. See, People v. Quinones, 2002 WL 432917 (App Term, 1st Dept. 2002) lv denied 98 NY2d 680 (2002); People v. Henry O., 47 Misc 3d 136(A) (App Term, 2d,11th & 13th Jud Dists 2015); People v. Eastmond, 19 Misc 2d 824 (Crim Ct, NY County 2008); People v. Easton, 16 Misc 3d 1105(A) (Crim Ct, NY County 2007); Taveras, 17 Misc 3d 1119(A); People v. Messina, 32 Misc 3d 318 (Crim Ct, Kings County 2011). At the pleading stage, the People are not required to negate the possibility that defendant was an invited guest.

Since the elements of Criminal Trespass in the Third Degree and Trespass are wholly included in the elements of Criminal Trespass in the Second Degree, an accusatory instrument that is facially sufficient for Criminal Trespass in the Second Degree is facially sufficient for the lesser included offenses of Criminal Trespass in the Third Degree and Trespass.

Motion to Suppress Statements

Defendant moves to suppress the statements he allegedly made because such evidence was obtained illegally obtained. Defendant argues that 1) the statements were involuntary within the meaning of CPL § 60.45; 2) he was not advised of his Miranda rights; and 3) the statements are the tainted fruit of an unlawful arrest. In the alternative, defendant requests a Huntley/Dunaway hearing in order to determine whether the statements should be suppressed.

Although the People consent to a Huntley hearing solely to determine the voluntariness of defendant's statements, the People oppose defendant's request for a Dunaway hearing as defendant has failed to set forth sufficient allegations in support of suppression. The People argue that the defendant has failed to raise a factual issue as to whether there was probable to effectuate his arrest. Notwithstanding the foregoing, the People maintain that the police possessed ample probable cause to arrest defendant.

A motion to suppress evidence "must state the ground or grounds of the motion and must contain sworn allegations of fact." CPL § 710.60(1). A motion to suppress must be summarily granted where the defendant alleges a legal ground warranting suppression and the People concede the truth of the factual allegations. CPL § 710.60(2)(a). A court may summarily deny a motion to suppress if the defendant fails to allege a proper legal basis for suppression or if the "sworn allegations of fact do not as a matter of law support the ground alleged." CPL § 710.60(3)(b). "[T]he sufficiency of [the] defendant's factual allegations should be evaluated by (1) the face of the pleadings, (2) assessed in conjunction with the context of the motion, and (3) [the] defendant's access to information." People v. Mendoza, 82 NY2d 415, 426 (1993).

Although summary denial of a motion to suppress is disfavored, "[h]earings are not automatic or generally available for the asking by boilerplate allegations." Mendoza, 82 NY2d at 422. "It is fundamental that a motion may be decided without a hearing unless the papers submitted raised a factual dispute on a material point which must be resolved before the court can decide the legal issue." People v. Gruden, 42 NY2d 214, 215 (1977). In requesting a hearing, a defendant must "controvert the specific factual averments as to the circumstances of the crime and his arrest." People v. Doyle, 273 AD2d 69, 69 (1st Dept. 2000) quoting People v. Suggs, 268 AD2d 305, 305 (1st Dept. 2000). A motion to suppress supported solely by conclusory allegations is insufficient to satisfy the requirements of CPL § 710.60(1).

This court finds that defendant has failed to allege sufficient facts to controvert the specific allegations as to the circumstances surrounding his arrest so as to raise an issue of fact related to probable cause that must be determined at a hearing. On a motion to suppress a statement as the fruit of an illegal arrest, defendant is likely to know, and must allege, circumstances of the arrest. People v. Toxey, 220 AD2d 204 (1st Dept. 1995).

Aside from asserting in a wholly conclusory fashion that he was arrested without probable cause, defendant critically does not dispute any of the factual allegations made by the People. Since defendant does not dispute any of the facts alleged in the complaint, his request to suppress his statements as the tainted fruit of an unlawful arrest is denied.

One exception to a court's authority to summarily deny a pretrial suppression motion for inadequate factual allegations relates to motions to suppress involuntarily made statements. In People v. Weaver, 49 NY2d 1012, 1013 (1980), the Court of Appeals held that "there must be a hearing whenever [the] defendant claims his statement[s] [were] involuntary no matter what facts he puts forth in support of that claim." See also, People v. Bingham, 144 AD2d 682 (2d Dept. 1988); Matter of Brian E., 206 AD2d 665 (3d Dept. 1994). Where, as here, defendant claims that his statements were made involuntarily pursuant to CPL § 60.45, a Huntley hearing must be held in order to determine the admissibility of said statements.

Accordingly, defendant's motion to dismiss the accusatory instrument as facially insufficient is denied. Defendant's motion for a Huntley hearing is granted on the People's consent. Defendant's motion for a Dunaway hearing is denied.

This constitutes the decision and order of this court.

Dated:August 12, 2015

Bronx, New York

_______________________________

Hon. Armando Montano Footnotes

Footnote 1:The term "dwelling" is defined as a "building which is usually occupied by a person lodging therein at night." PL § 140.00(3).

Footnote 2:"A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists." PL § 15.05(2).

Footnote 3:Differentiating between whether a particular statutory element constitutes a proviso or an exception "is critical to facial sufficiency analysis, since the People must plead factual allegations to rebut an exception, while the defendant must affirmatively raise a proviso as a defense at trial." People v. Messina, 32 Misc 3d 318, 323-324 (Crim Ct, Kings County 2011); see also, People v. Davis, 13 NY3d 17 (2009)