People v Pennisi

[*1] People v Pennisi 2018 NY Slip Op 51731(U) Decided on December 3, 2018 Criminal Court Of The City Of New York, Queens County Gershuny, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 3, 2018
Criminal Court of the City of New York, Queens County

The People of the State of New York, Plaintiff,

against

Michael Pennisi, Defendant.



CR-035112-18QN



For the People- Richard A. Brown, District Attorney, Queens County by Matthew Garber, Assistant District Attorney

For the Defendant- Mary Hoynacki, Esq.
Jeffrey Gershuny, J.

The defendant is charged with one count of Criminal Trespass in the Third Degree (PL §140.10[a]). By motion filed October 19, 2018, the defendant seeks dismissal of the complaint for facial insufficiency. The People oppose the relief requested.

The defendant motion to dismiss the count of Criminal Trespass in the Third Degree for facial insufficiency is GRANTED.

Factual Allegations

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The complaint states in relevant part:

Deponent states that [on or about October 11, 2018 at about 6:03 PM, inside of 105-52 101 street [106 precinct]) the deponent observed the defendant, Michael Pennisi, inside the 106 precinct at the above-described location.Deponent further states that the defendant attempted to take pictures and take video recordings in the building at the above mentioned location and that there are conspicuously posted signs throughout the building prohibiting photography or video recording in said location.Deponent further states that he warned the defendant that he would be arrested if he did not stop taking pictures of the inside of the building at the above mentioned location.Deponent states that the defendant stated in sum and substance, Fuck You, I'm Not Getting Arrested.Deponent further states that he is the legal custodian of the above mentioned location, and the defendant had no permission or authority to enter or remain inside of this building.

Facial Sufficiency

To be facially sufficient, an accusatory instrument "must designate the offense or offenses charged" (CPL § 100.15 [2]) and "must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges." CPL § 100.15 [3]. More specifically, an information must provide "reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information" and must contain "non-hearsay allegations . . . [that] establish, if true, every element of the offense charged and the defendant's commission thereof." People v Henderson, 92 NY2d 677, 679 (1999); See CPL § 100.40 [1]. "An information must set forth the required non-hearsay evidentiary allegations within the 'four corners of the instrument itself' or in annexed supporting depositions." People v. Thomas, 4 NY3d 143, 146 (2005)).

The Court of Appeals has stated that CPL § 100.40 [1] places "the burden on the People to make out their prima facie case for the offense charged in the text of the information." People v Jones, 9 NY3d 259, 261 (2007). It should be noted that the prima facie case requirement is not the same as the burden required at trial of proof beyond a reasonable doubt, "nor does it give rise to the level of legally sufficient evidence that is necessary to survive a motion to dismiss based on the proof presented at the trial." People v Kalin, 12 NY3d 225, 230 (2009). Rather, what is required is that the factual allegations in the 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." Id. at 230 (internal citations and quotations omitted). Ultimately, the information "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

Pursuant to PL § 140.10(a), 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." Pursuant to PL §140.00(5) "a person 'enters or remains unlawfully' in or upon premises when he is not licensed or privileged to do so. A person who, regardless of his intent, enters or remains in or upon premises which are at the time open to the public does so with license or privilege unless he defies a lawful order not to enter or remain, personally communicated to him by the owner of the premises or other authorized person." See also, People v Brown, 25 NY2d 374, 376 (1969); People v Leonard, 62 NY2d 404, 408 (1984). "The People bear the burden of proving that an entry was unlicensed or unprivileged." People v Durst, 42 Misc 3d 1201(A) (Crim Ct. NY County, 2013) citing People v Brown, 25 NY2d 374 (1969).

Further, it is the prosecution's burden to establish that the defendant '"knowingly" entered the premises without [a] license or privilege to enter." People v Basch, 36 NY2d 154, 159 (1975). "A person who enters upon premises accidently, or who honestly believes that he is licensed or privileged to enter is not guilty of any degree of criminal trespass." People v Durst, 42 Misc 3d 1201(A) (Crim Ct. NY County, 2013) quoting People v Basch, supra. Moreover, the defendant must have knowledge that remaining in the premises is unlawful in order to establish the unlawfully remaining element of the charge. People v Ranieri, 144 AD2d 1006, 1008 (4th Dept. 1988) lv denied 73 NY2d 895 (1989).

Here, the defendant maintains, and the People concede that the 106th precinct is in fact a public place. As such, the defendant was licensed or privileged to enter the precinct. "When an area is open to the public, such as the 106th precinct, 'the People have the burden of proving that a lawful order excluding the defendant from the premises issued, that the order was [*2]communicated to the defendant by a person with authority to make the order, and that the defendant defied that order."' People v Reape, 22 Misc 3d 615,618 (Crim Ct. New York Co. 2008) quoting People v Munroe, 18 Misc 3d 9, 11 (App Term 9th & 10th Jud Dists. 2007). Therefore, the issue before this court is whether a lawful order not to remain was personally communicated to the defendant and whether he defied such lawful order.

The People aver that defendant's privilege to remain in the public building was terminated by a lawful order, personally communicated to him by an authorized person. Specifically, the People maintain that the defendant was warned that he would be arrested for trespass if he did not cease his conduct. Contrary to the People's assertions, the allegations in the complaint do not support this. The allegations merely state that the officer advised the defendant that he would be arrested if he did not stop taking pictures of the inside of the building. The allegations fail to specify for what defendant would be arrested. Furthermore, the complaint is devoid of any allegations to support that an order to leave the premises by an authorized person was ever personally communicated to the defendant. Without said order, the element of "remains unlawfully" is not sufficiently plead. Cf. People v Jackson, 46 Misc 3d 142(A) (App Term, 2nd, 11th & 13th Jud. Dists. 2015) lv denied 25 NY3d 1073 (2015) [defendant's privilege and license to remain in the precinct was lost because he defied a lawful order not to remain in the premises, 'personally communicated to him by [an] authorized person."'(internal citations omitted)]; see also People v Zevin, 26 NY2d 783 (1970); People v Brown, 25 NY2d 374 (1969).

In furtherance of their argument, the People cite to the updated New York City Police guidelines and argue that the guidelines authorize police officers to arrest anyone taking pictures inside police precincts and charge them with trespass. The court notes said guidelines are not binding on this court, nor can the court consider it as it's not contained within the four corners of the accusatory instrument itself. People v. Thomas, 4 NY3d 143, 146 (2005). Moreover, the guidelines do not support the People's argument. The guidelines specify that "members of the service may order any member of the public who is photographing or recording within Department facilities to stop such activity. If such person refuses to stop, they then should be ordered to leave the premises. If such person refuses to leave the premises, members of the service may take proper enforcement action under the trespass statues." See Patrol Guide Procedure No. 203-2. The very guidelines that the People rely on, explain why this complaint is facially insufficient. They require that the officer order the defendant to leave, which in this instance the officer failed to do so.

Based on the foregoing, defendant's motion to dismiss the count of Criminal Trespass in the Third Degree as facially insufficient is GRANTED. The People have leave to file a superseding information.

This constitutes the decision and order of the Court.

Dated: December 3, 2018

Queens, New York

______________________

Jeffrey Gershuny

Judge of the Criminal Court