Summary
distinguishing between "trespass" and "criminal trespass"
Summary of this case from Hogan v. Lewis Cnty.Opinion
11-18-2016
The PEOPLE of the State of New York, Appellant, v. Heriberto ORTA, Defendant–Respondent.
Darcel D. Clark, District Attorney (Stanley R. Kaplan of counsel), for appellant. The Bronx Defenders, Bronx (Colby Dillon of counsel), for respondent.
Darcel D. Clark, District Attorney (Stanley R. Kaplan of counsel), for appellant.
The Bronx Defenders, Bronx (Colby Dillon of counsel), for respondent.
PRESENT: SCHOENFELD, J.P., SHULMAN, GONZALEZ, JJ.
PER CURIAM. Order (Armando Montano, J.), dated March 15, 2016, reversed, on the law, motion denied, and the counts of the superseding information charging defendant with criminal trespass in the third degree and trespass are reinstated.
The accusatory instrument was not jurisdictionally defective. Giving the superseding information "a fair and not overly restrictive or technical reading" (People v. Casey, 95 N.Y.2d 354, 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000] ), we find "as a matter of common sense and reasonable pleading" (People v. Davis, 13 N.Y.3d 17, 31, 884 N.Y.S.2d 665, 912 N.E.2d 1044 [2009] ) that it was legally sufficient to charge defendant with criminal trespass in the third degree (see Penal Law § 140.10[a] ) and trespass (see Penal Law § 140.05 ). The "knowingly enters or remains unlawfully" element of the underlying charges (see Penal Law § 140.00[5] ) was satisfied by the arresting officer's sworn allegation that, in violation of a conspicuously posted sign stating that the specified City park closes "at dusk," defendant was observed entering said park at 8:53 pm on September 14, 2015, after "the sun had set and nightfall had begun" (see People v. Lamb, 49 Misc.3d 135[A], 2015 N.Y. Slip Op. 51483[U], 2015 WL 5827698 [App.Term, 1st Dept.2015], lv. denied 26 N.Y.3d 1089, 23 N.Y.S.3d 646, 44 N.E.3d 944 [2015] ). No additional evidentiary details were required for the People's pleading to provide "adequate notice to enable defendant to prepare a defense and invoke his protection against double jeopardy" (People v. Kasse, 22 N.Y.3d 1142, 1143, 984 N.Y.S.2d 287, 7 N.E.3d 500 [2014] ).
Criminal Court's conclusion that the word "dusk" is to be interpreted, not in light of its plain meaning, but pursuant to precise astronomical or meteorological definitions of the word—which consider factors such as the number of degrees the geometric center of the sun is below the horizon and whether terrestrial objects are visible under good weather conditions—constitutes a hypertechnical reading of the pleaded facts. An accusatory instrument "must be given a reasonable, not overly technical reading"; courts should "not rely on external factors to create jurisdictional defects not evident from the face of the document" (People v. Konieczny, 2 N.Y.3d 569, 576, 780 N.Y.S.2d 546, 813 N.E.2d 626 [2004] ). In view of our determination, we reach no other issues.