NY Trespass Dimsmissed – Court Agrees with Criminal Defense Attorney – Complaint Facially Insufficient

A New York City criminal defense lawyer has successfully argued in Brooklyn Criminal Court that the pending Trespass charges, pursuant to Penal Law 、140.15, 、140.10(a) and 、140.05, against his client should be dismissed for facial insufficiency. The Brooklyn Criminal Court decision in People v. Darrell Weatherspoon, 2008KN076633, was published last week. For those readers who do not have access to this material, the New York criminal defense attorneys at Saland Law PC, will summarize this important legal decision for you.

By way of background, a person is guilty of Criminal Trespass in the Second Degree pursuant to PL 、140.15 when he knowingly enters or remains unlawfully in a dwelling. A person is guilty of Criminal Trespass in the Third Degree pursuant to PL 、140.10(a) when he knowingly enters or remains unlawfully in a building upon real property which is fenced or otherwise enclosed in a manner designed to exclude intruders. Lastly, a person is guilty of Trespass, a violation pursuant to Penal Law 、140.05, when he knowingly enters or remains unlawfully in or upon premises. A person enters or remains unlawfully in or upon premises when he is not licensed or privileged to do so.

In pertinent part, the information against the defendant alleged that the officer (deponent) observed:

“[The defendant] on the first floor of a New York City Housing Authority (NYCHA) building at 552 Flushing Avenue, Kings County, a dwelling, which is posted with signs saying, ‘Loitering and trespassing in lobby roof hallway and stairs is not permitted. Violators are subject to arrest and prosecution by the Police Department.’ Deponent further states that defendant was neither a tenant nor a guest in the above-mentioned premises. Deponent describes herself as custodian of the dwelling and states that defendant did not have permission or authority to enter and remain in those premises.”

Citing People v. Brunson (8/14/1995 NYLJ 32[col][Criminal Court, Queens County, 1995]), the court noted that the trespass signs must be “conspicuously posted” and merely indicating there were in fact trespass signs were posted in not sufficient. Without this, knowledge that the defendant did not have permission to be on the premises cannot be imputed. Therefore, the complaint (actually an information) must allege in some capacity how or where the signs were posted to give the defendant notice.

The court further stated that:

“The People have shown nothing to support their contention that defendant had knowledge that his entrance into the building was unlawful. Sufficient pleading is particularly important in view of the facts that the defendant was not arrested inside the building where he is alleged to have trespassed but in front of another building, 53 Nostrand Avenue, and that defendant has denied having entered the subject building.”

The decision in People v. Darrell Weatherspoon is important on many levels. Although it is not a Court of Appeals decision, the decision clearly set forth that the People must establish a defendant’s knowledge that he did not have permission to be in or at a location. Merely stating there was a trespassing sign is not sufficient. This decision further fortifies the importance to retain an experienced criminal defense attorney so he or she can challenge the facial sufficiency of an information. Some questions your criminal defense attorney should examine are whether the property was fenced completely, the defendant was arrested near or next to a trespass sign, the trespass signs were posted at all the entrances, or the defendant made an admission.

Whatever the case, the former Manhattan prosecutors at Saland Law PC know how to examine and analyze the facts, assess the strengths and weakness, and implement a strategy to protect your liberty, rights, and integrity.

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