The People, Respondent,v.Nature G. Finch, Appellant.BriefN.Y.January 16, 2014To Be Argued By: PHILIP ROTHSCHILD Time Requested: 15 Minutes QCourt of ~ppeals $tate of ~ew ~ork THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- NATURE FINCH, Appellant. BRIEF FOR APPELLANT Brief Completed: April 22, 2013 PHILIP ROTHSCHILD, ESQ. Hiscock Legal Aid Society Attorneys for Appellant 351 South Warren Street Syracuse, New York 13202 (315) 422-8191 (ext. 0179) Fax No. (315) 422-5296 TABLE OF CONTENTS TABLE OF AUTHORITIES ............................................................................................. ii QUESTIONS PRESENTED .............................................................................................. 1 JURISDICTIONAL STATEMENT····················································································· 2 STATEMENT OF FACTS ................................................................................................ 4 ARGUMENT ................................................................................................................ 8 POINT I: THE CHARGE OF RESISTING ARREST WAS INSUFFICIENT AS A MATTER OF LAW AS POLICE KNEW THAT MR. FINCH WAS AN INVITEE OF A TENANT, IDS TRESPASS ARREST WAS FOR BEING AT THE TENANT'S APARTMENT COMPLEX, AND THE ONLY BASIS FOR THAT ARREST WAS A POLICE STAY-AWAY ORDER TO MR. FINCH THAT POLICE HAD NO AUTHORITY TO ISSUE ........................................ 8 A. Introduction ..................................................................................... 8 B. Proof of Trespass was Legally Insufficient... .................................. 9 C. Resisting Arrest Requires a Valid Arrest.. .................................... 12 D. The Lower Comi Erred in Finding Probable Cause to Arrest ...... 14 E. The Cmmty Court's Determination was Contrary to Public Policy ............................................................................................. 17 F. The Matter Presents a Question of Law Preserved for This Court's Review .............................................................................. 19 G. Conclusion ..................................................................................... 21 CONCLUSION ............................................................................................................ 22 i TABLE OF AUTHORITIES Cases-New York State Baisch v State, 76 Misc2d 1006 [Ct. ofC1aims 1974]. ..................................... 16, 19 Bonnau v State, 303 NY 721 [1951] ................................................................. 16, 19 Broughton v State, 3 7 NY2d 451 [ 197 5] ................................................................ 13 In reT., 43 NY2d 213 [1977] ................................................................................. 14 Krachtv Town ofNewburgh, 245 AD2d424 [2dDept 1997]. ............................... 16 Lewis v Caputo, 20 NY3d 906 [2012] .................................................................... 15 Lewis v Caputo, 95 AD3d 262 [1st Dept 2012]. ..................................................... 16 People v Alejandro, 70 NY2d 133 [1987] .............................................................. 12 People v Attebery, 223 AD2d 714 [2d Dept 1996] ................................................. 14 People v Bigelow, 66 NY2d 417 [1985] ................................................................. 19 People v Brozowski, 53 AD2d 706 [3d Dept 1976]. ................................................. 10 People v Chilton, 69 NY2d 928 [1987] .................................................................. 15 People v Concepcion, 17 NY3d 192 [20 11] ............................................................. 21 People v Coulanges, 264 AD2d 853 [2d Dept 1999] ............................................. 14 People v Graves, 76 NY2d 16 [1990] ................................................................ 10, 17 People v Gray, 86 NY2d 10 [1995] ......................................................................... 20 People v Hobot, 84 NY2d 1021 [1995]. ................................................................... 21 People v Jensen, 86 NY2d 248 [1995] ................................................................... 12 People v Jones, 9 NY3d 259 [2007] .......................................................... 13, 14, 20 People v Konikov, 160 AD2d 146 [2d Dept 1990] ................................................... 10 People v LaFontaine, 92 NY2d 470 [1998] ............................................................. 21 People v Leonard, 62 NY2d 404 [1984] .................................................................. 11 People v Marrero, 69 NY2d 382 [1987]. .......................................................... 15, 16 People v Matienzo, 81 NY2d 778 [1993] ............................................................... 14 People v Messina, 32 Misc.3d 318, 324 [C1im Ct. Kings County 2011] .................. 11 People v Munafo, 50 NY2d 326 [1980] .................................................................. 10 People v Peacock, 68 NY2d 675 [1986]. .............................................. 12, 13, 14, 20 People v Scott, 26 NY2d 286 [1970]. ....................................................................... 10 People v Stephens, 100 Misc2d 267 [Suffolk County Dist. Ct. 1979]; ............ 16, 19 People v Stevenson, 31 NY2d 108 [1972] ........................................................ 13,20 People v Turner, 5 NY3d 476 [2005]. ...................................................................... 21 People v Voliton, 83 NY2d 192 [1994]. .................................................................. 13 People v Williams, 25 NY2d 86 [1969] .................................................................. 15 Sky Four Realty v State, 134 Misc.2d 810 [Ct. of Claims 1987] .............................. 10 Smalley v Bemben, 50 AD3d 1470 [4th Dept 2008] ................................................. 17 ii Zwerin v Geiss, 38 Misc2d 306 [NY Cmmty 1963] ................................................. 10 Cases-Other States Vermont v Dixon, 725 A.2d 920 [1999] ................................................................... 17 Cases-Federal Ligon v City of New York (2013 U.S. Lexis 2871 [S.D.N.Y. Jan. 8, 2013]. .............. 18 Statutes CPLR § 5501 (b) ....................................................................................................... 2 CPL 140.10 ............................................................................................................. 14 CPL 330 ..................................................................................................................... 3 CPL 450.90 (1) .......................................................................................................... 2 CPL 460.20 (2) (b) .................................................................................................... 2 CPL 470.05 (2) ........................................................................................................ 20 CPL 470.35 (1) ........................................................................................................ 21 Penal Law§ 140.10 (a) ......................................................................................... 2, 9 Penal Law§ 140.10 (e) ............................................................................................ 11 Penal Law§ 140.10 (±) ............................................................................................. 11 Penal Law§ 205.30 ............................................................................................. 2, 12 Other Authorities Donnino, Practice Commentary, McKinney's Cons Laws ofNY, Book 39, Penal Law§ 205.30, at 503 ........................................................................................... 12 Letter from Thomas Lentol, Bill Jacket L 1992, Ch 434 § 1, p. 11 .......................... 11 Elena Goldstein-Kept Out: Responding to Public Housing No-Trespass Policies 38 Harv. C.R.-C.L. L. Rev. 215 [2003] .................................................................... 18 McKinney's Cons Laws ofNY, Book 39, Penal Law§ 140, commentary .............. 11 iii QUESTION PRESENTED 1. Where the police lmew that Mr. Finch was an invitee of a tenant, was the proof that Mr. Finch was resisting arrest insufficient where he was arrested for trespass for being at the tenant's apartment complex, and the only basis for that trespass arrest was a police stay-away order to Mr. Finch that police had no authority to issue? The Cmmty Court reversed the trespass convictions, finding the stay-away orders arbitrary and insufficient to revoke Mr. Finch's license, but nevertheless affirmed the resisting arrest, holding the police had probable cause to arrest him for trespass based on said orders and their prior unwarranted arrests of Mr. Finch for trespass. 1 JURISDICTIONAL STATEMENT This appeal is from a final decision of the Appellate Division, Fourth Department, and is undertaken by permission of the Hon. Eugene Pigott, a Judge of this Court, who issued an Order Granting Leave on December 13, 2012, pursuant to Criminal Procedure Law (hereinafter CPL) section 460.20 (2) (b). The People belatedly cross-moved for leave from the portion of the intem1ediate court's order dismissing the trespass charges, and this Court denied the leave motion as untimely on March 5, 2013. This Court has jurisdiction to review the issue raised herein pursuant to Civil Practice Law and Rules section 5501 (b), as it involves questions of law, and CPL 450.90 (I), because it mises from an adverse order of an intermediate appellate court. Specifically, this Court has jurisdiction to review the order of the Onondaga County Court (Anthony Aloi, J.), rendered on August 23, 2012, that partially affirmed a judgment of the Syracuse City Court (Stephen J. Dougherty, J.) rendered May 19, 2011. The final judgment from Syracuse City Court convicted Mr. Finch, upon a jury verdict, of two counts of trespass in the third degree (Penal Law § 140.10 [a]) and one count of resisting arrest (Penal Law § 205.30) (Appendix [hereinafter "A"] at 4). The County Court modified the judgment upon appeal by reversing and dismissing the trespass charges, finding that police were aware that Mr. Finch was 2 a guest of the tenant, that his license could not be sununarily revoked by the landlord or the police acting as the landlord's agent, and that the proof of trespass was insufficient as a matter oflaw (A. 12). County Court nevertheless affirmed the resisting auest, finding it authorized as police had told Mr. Finch to stay off the premises and had auested him two times before for the same offense (A. 14-15). The relevant facts in this case are not in dispute, as County Court found that: l) police knew that Mr. Finch was a guest of the tenant; 2) his license could not be revoked by stay-away orders; and 3) any prior trespass arrests of him based upon the same rationale were similarly improper. Police probable cause to auest was based upon a legal and not factual mistake, presenting a question of law for this Court's determination. The argument was preserved for this Court's review by defense counsel's repeated motions to dismiss the resisting auest because the arrest was not authorized, in written pretrial motions (A. 52-53), a motion for a trial order of dismissal (A. 521), which was renewed at the close of all proof (A. 667), and in a post-verdict CPL 330 motion (A. 68-71). 3 STATEMENT OF FACTS Nature Finch, the Appellant herein, had a son with Calleasha Bradley, a tenant at Parkside Commons Estate (hereinafter Parkside ), a public housing complex in Syracuse, New York. Mr. Finch was a frequent invited guest of Ms. Bradley, as he often stayed over to take care of their infant child. Police had previously ticketed him a few months before for trespassing on the premises, but that charge had been dismissed by the City Court Judge at arraignment (A. 570- 572). On April28, 2009, Mr. Finch was visiting Ms. Bradley when she asked him to get the mail from the lobby. There he met a friend named Kashaine Wilkerson and two female residents. Syracuse Police Detectives James Quatrone and Todd Hood, who were also working security detail at the complex, entered the lobby and began to semch everyone, finding marijuana on Wilkerson (A. 574-576). Quatrone became angry at Mr. Finch for spinning his keys, threw him against a wall and said that he could not be on the premises because he was not on the tenant list. Quatrone arrested Mr. Finch for trespassing, even though both Mr. Finch and Ms. Bradley told Detective Quatrone that Mr. Finch was her invited guest (A. 378). Quatrone vowed to an-est Mr. Finch for trespass if he ever saw him on the property again. Though Quatrone later claimed a small pocket lmife and dmgs were found, 4 Mr. Finch was neither charged with possession of the marijuana found on Mr. Wilkerson (A. 348) nor criminal possession of a weapon. Both Mr. Finch and Ms. Bradley complained to the landlord, Quatrone's superiors and police intemal affairs regarding the incident, and started to circulate a petition among complex residents complaining of police abuse (A. 578-583). The landlord's agent Nicole Smith was sympathetic to their plight and told Mr. Finch to try to stay inside to avoid the police, but never told him that he did not have the right to be on the property (A. 584). Smith said that she had delegated such decisions to police, but they were to arrest only those having no business on the property, and not those people visiting tenants (A. 325). Quatrone made good on his threats to Mr. Finch, arresting him on sight for trespass on May 12, 2009, in front of his infant son as Mr. Finch was circulating petitions at the complex regarding the ptior abuse. Police prestm1ably seized and destroyed those petitions in the process (A. 586-589). Quatrone arrested Mr. Finch again on May 27, 2009, as Mr. Finch was leaving a meeting with Ms. Smith to complain about the police abuse. It was during this incident that Mr. Finch was also charged with resisting arrest. Quatrone was not even working the security detail on May 2i11 when he saw Mr. Finch in the parking lot behind a building. When told that he was under arrest, Mr. Finch said that he had pennission to be there and tried to walk away. Quatrone 5 ordered him to turn around, pi1med Mr. Finch's am1s behind his back, and slammed him onto a car. Two other police officers came to assist and Quatrone cuffed Mr. Finch high and tight and kicked him as he threw him into a police car (A. 594). Later at police headquarters Quatmne told Mr. Finch that he was going to arrest him every time he saw him, called Ms. Bradley an obscenity and said he would have her evicted as well (A. 599). The state's trespass case rested upon the building grounds being posted with no trespassing signs warning the general public to stay off the property (A. 282, 290, 292), and the police telling Mr. Finch that he could not be on the premises (A 346, 372, 517). Ms. Bradley's lease was never offered into evidence and there was no showing that the landlord had reserved the right to revoke or limit tenants' ability to invite guests (A 302). The County Comi fmmd the proof of trespass legally insufficient, as Mr. Finch was an invitee of Ms. Bradley. His license to be on the property thus could not be extinguished by the arbitrary issuance of a stay- away order by the landlord or the police as his agent, since neither the landlord nor the police had the authority to prevent tenants from inviting guests on to the property (A 12). Despite this dismissal the County Court affirmed the resisting arrest, finding that while the trespass was insufficient as a matter of law and the police had no lawful basis to charge Mr. Finch with trespass, they somehow possessed probable 6 cause to arrest him for trespassing on the premises because they had ordered him to stay off the property and previously charged him with resisting arrest (A. 13-14). 7 ARGUMENT POINT I: THE CHARGE OF RESISTING ARREST WAS INSUFFICIENT AS A MATTER OF LAW BECAUSE POLICE KNEW THAT MR. FINCH WAS AN INVITEE OF A TENANT, IDS TRESPASS ARREST WAS FOR BEING AT THE TENANT'S APARTMENT COMPLEX, AND THE ONLY BASIS FOR THAT ARREST WAS A POLICE STAY-AWAY ORDER TO MR. FINCH THAT POLICE HAD NO AUTHORITY TO ISSUE. A. Introduction Nature Finch was an invited guest of Calleasha Bradley, a tenant at Parkside. Detective Quatrone knew this but arrested Mr. Finch for criminal trespass in the third degree on April 28, 2009, and told him to stay away, mistakenly believing that he had the power as the landlord's agent to arbitrarily order him off the premises and arrest him for trespass if he failed to comply. Quatrone's belief that either the police or the landlord had the authority to limit or oven11le the tenant's ability to invite guests on to the property was neither premised on applicable New York law nor upon the language of the lease. Mr. Finch returned to help take care of his infant son who was living with Ms. Bradley at the complex. Quatrone auested Mr. Finch twice more for trespass on May li11 and 2ih, 2009, the latter also including a charge for resisting arrest. After a jury trial in Syracuse City Court, Mr. Finch was convicted on two charges of trespass and the resisting auest. On appeal the Onondaga County Court (Aloi, J.) reversed and dismissed the trespass charges, finding that police knew Mr. Finch was an invitee, they were wrong in presuming the stay-away order extinguished the 8 license, and Mr. Finch's presence did not constitute trespass as a matter of law (A. 11-12). Despite finding that the license trumped the stay-away order and dismissing the trespass as legally insufficient, the Cow1ty Court contrarily affirmed the resisting anest conviction, holding that police officers had "reasonable cause" to believe that Mr. Finch was in fact trespassing, thus making the an·est authorized. Such "reasonable cause" was due to the area being posted, the stay-away order police conveyed to Mr. Finch, plus the fact that they had arrested him twice before for trespass (A. 13-14). Appellant submits that the County Court's circular rationale presents a fundamental enor oflaw. Trespass in this case was founded upon a mistake oflaw, not fact. Police have factual, not legal discretion, and absent a valid legal basis to anest, any resisting anest charge must fail as well. Police were wrong as a matter of law in their belief that Mr. Finch had committed tr·espass, no matter how good faith their belief or the number of times they had mistakenly arrested him in the past for the same offense. This holding was also void as contrary to public policy. B. Proof of Trespass was Legally Insufficient Mr. Finch was charged lillder Penal Law § 140.10 (a) with entering or remaining unlawfully upon real property that was fenced or otherwise enclosed in a manner designed to exclude intmders (A. 19). The County Court below correctly 9 found the proof of trespass legally insufficient, as police knew that Mr. Finch was a guest of Ms. Bradley (A. 378), and his license could not be extinguished by an arbitrmy stay-away order. Any such order issued by the police as the landlord's agent did not make Mr. Finch's presence on the premises unlawful (A. 12). A lease constitutes a conveyance of property interests, one of those interests being the right of the tenant to possession of the premises (People v Scott, 26 NY2d 286 [1970]). Absent a reserved right of entry, the landlord has no cmmnon law right of entry into the demised premises and his right to possession is considered inferior to that of the tenant, who has the sole right to tmdisturbed occupation and control (Scott, 26 NY2d at 290; see also, Zwerin v Geiss, 38 Misc2d 306 [Sup. Ct. NY County 1963]). Another inherent tight of the lessee m1der the covenant of quiet enjoyment is the ability to grant license to whichever guests he or she chooses. One who has such a license or possessory interest cannot, by definition, be a trespasser (see People v Graves, 76 NY2d 16 [1990]; People v Munafo, 50 NY2d 326 [1980]), or even be liable for a civil tort (see Sky Four Realty v State, 134 Misc2d 810 [Ct. of Claims 1987]). The People have the burden of proving that a defendant lacked license or pem1ission (see People v Konikov, 160 AD2d 146, 150-151 [2d Dept 1990]; People v Brozowski, 53 AD2d 706 [3d Dept 1976]). That burden was not met here. 10 Penal Law § 140.10 (e) and (f) make it a crime to enter or remain in public housing grounds that are conspicuously posted or where a housing officer personally communicates a request to leave the premises. While Mr. Finch was not charged under those sections, even if he were it would not have resulted in a different legal outcome, as he was a guest and licensee and the legislature never intended to include or define those people as trespassers (see People v Messina, 32 Misc3d 318, 324 [Crim Ct Kings Cmmty 2011]; McKinney's Cons Laws of NY, Book 39, Penal Law§ 140.10, at 351 [1988], conm1entary [the legislature ... expressed its concern that any person other than the residents or their guests had such unrestricted access]; Letter fi·om Thomas Lentol (Senate Sponsor), Bill Jacket L 1992, ch 434 § 1, at 11 [trespass summonses could be issued to those who do not reside in the building and are not visiting a resident]). When the trespass prosecution is based upon a particular order of preclusion, the prosecution must demonstrate a legitimate basis for the order and show that its enforcement did not unlawfully inhibit or circumscribe the defendant fi·om engaging in constitutionally or statutorily protected conduct (People v Leonard, 62 NY2d 404 [1984]). Here the People failed to meet their burden of proof. They never produced the lease or showed any reservation of the landlord's 1ight to extinguish or curtail the tenant's right to grant license. 11 The prosecution never showed any other legitimate basis for the stay-away order, as Mr. Finch was never charged with possessing Kashaine Wilkerson's marijuana, and even Detective Quatrone did not claim that Mr. Finch having a small pocket lmife in his pocket constituted criminal possession of a weapon. The only stated rationale for the stay-away order was because Mr. Finch was charged with trespassing and told to stay away. The Cmmty Court deemed such circular reasoning tmpersuasive, finding that police lmew Mr. Finch was a guest of Ms. Bradley, his license was superior to that of the landlord, and that arbitrary police orders to stay away could not revoke that license. The trespass charged was thus deemed insufficient as a matter oflaw (A. 12). C. Resisting Arrest Requires a Valid Arrest A person is guilty of resisting arrest when he intentionally prevents a police officer from effecting an authorized arrest (see Penal Law § 205.30; People v Peacock, 68 NY2d 675, 676 [1986]). A key element of resisting arrest is the existence of an authorized arrest, including a finding that the arrest was premised on probable cause (see People v Jensen, 86 NY2d 248, 253 [1995]; People v Alejandro, 70 NY2d 133, 135 [1987]; Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law § 205.30, at 503 [an individual who intentionally prevents an unauthorized anest is not guilty of resisting arrest]). 12 Thus, in a prosecution for resisting arrest, the bmden is on the People to show that police were engaged in "authorized" conduct (People v Voliton, 83 NY2d 192, 196 [1994]). Where a defendant has been arrested without a wanant, police have acted extra-judicially and there is a presumption that the arrest is unlawful (Broughton v State, 37 NY2d 451 [1975]). Arrest for conduct which does not legally constitute an offense is not an authorized arrest (People v Jones, 9 NY3d 259 [2007]; People v Stevenson, 31 NY2d 108 [1972]). In Peacock the defendant was charged with harassment and resisting arrest where she struck a police officer's arm as she was trying to walk away from him. Though the harassment was dismissed, the trial court felt that it provided reasonable basis for the arrest and sustained the resisting charge. This Court reversed, finding police lacked grounds to believe that defendant had cmm1ritted any offense, the arrest was not authorized, and defendant could not be guilty of resisting anest (Peacock, 68 NY2d at 676). In Jones the underlying disorderly conduct charge was facially insufficient and failed to provide reasonable cause that defendant conmritted the offense, and absent proof that the arrest was authorized, the resisting charge had to be dismissed as well (Jones, 9 NY3d at 263). In the present case the legal insufficiency of the trespass charge should have been dispositive as to the resisting arrest. 13 D. The Lower Court Erred in Finding Probable Cause to Arrest Probable cause to arrest exists if facts and circumstances known to the arresting officer would lead a reasonable person possessing the officer's expertise to conclude that it is more probable than not that suspect has cmmnitted or is committing a crime (emphasis supplied)(People v Coulanges, 264 AD2d 853 [2d Dept 1999]; People v Attebe1y, 223 AD2d 714 [2d Dept 1996]; see CPL 140.1 0). For example, police observation and analysis of street corner activity may provide reasonable suspicion that a crime has been conmritted (see People v Matienzo, 81 NY2d 778 [1993]). In this case the facts are not in dispute, only their legal significance, and police expertise also includes a presumed knowledge as to what does and does not constitute a crime. Unlike factual deternnnations, however, the police officer's good faith is irrelevant where the known facts still provide insufficient legal proof of the underlying charge. That precludes any finding of probable cause for the initial arrest regardless of the since1ity of officer's belief, and mandates dismissal of the resisting arrest charge (see Peacock, 68 NY2d at 676; Jones, 9 NY3d at 263). Without probable cause the police may not lawfully place an individual in custody (In reT., 43 NY2d 213 [1977]). While probable cause determinations are generally a nnxed question of law and facts that cannot usually be resolved on the 14 law (People v Chilton, 69 NY2d 928 [1987]), that is simply not the case here as there was no dispute as to the facts or their varying inferences (Lewis v Caputo, 20 NY3d 906 [2012]; see Wu v City of New York, 934 F Supp 581 [SDNY 1996]). In this case the probable cause detennination was not a question of fact as the police lmew that Mr. Finch was a licensee yet proceeded to arrest him time and again on a mistaken legal theory. Police knowledge of the license was determinative, as illustrated by this Court's holding in People v Williams (25 NY2d 86 [1969]). There, the governor gave protestors permission to be in his office, but they were subsequently charged with unlawful intmsion and resisting arrest. This Court held that reversal of the unlawful intrusion charges did not mandate reversal of the resisting charges because there was no showing that police !mew that permission had been given (People v Williams, 25 NY2d at 90). Absent such knowledge, the police thus had reasonable cause to believe that a crime was committed. In contrast, the record in tlris case shows that the police who arrested Mr. Finch knew that he was a licensee (A. 3 78) and "probable cause" was based upon their mistaken legal belief that their order tmilaterally extinguished that license. In this case the probable cause was based upon the police officer's erroneous view of the law. The doctrine of nristake of law has generally been disfavored by this Court (see People v Marrero, 69 NY2d 382 [1987] [federal corrections officer 15 wrongful belief that he was authorized to carry a loaded .38 caliber handgun no defense to a state weapons charge]). Given that it is not available as a defense to defendants, it should also not be available to police. That is certainly true regarding cases involving the police being sued for false arrest, where probable cause serves as a complete defense to the claim (Marrero, 69 NY2d at 382; Lewis v Caputo, 95 AD3d 262, 268 [1st Dept 2012]). While police may rely on even mistaken information from others for probable cause to arrest a person for trespass and avoid liability (see Kracht v Tovvn of Newburgh, 245 AD2d 424 [2d Dept 1997]), that defense to false arrest does not apply when police know all of the facts but still arrest a person for misconduct which does not constitute a crime (see People v Stephens, 100 Misc2d 267, 269 [Suffolk County Dist Ct 1979]; Bonnau v State, 303 NY 721 [1951]; Baisch v State, 76 Misc2d 1006 [Ct. of Claims 1974] [American flag colors painted on car not a violation of the law, arrest gave rise to false arrest and imprisonment claim]). If a police officer's mistake on the law as to what constitutes a crime cannot serve as probable cause to insulate police from civil liability, then it cannot serve as probable cause to support a charge of resisting arrest. In the case at bar police had all of the relevant facts but still atTested Mr. Finch for a patently legally insufficient trespass charge. Given that police here would be civilly liable for false 16 arrest, they did not possess probable cause so as to justify the resisting anest charge. E. The County Court's Determination was Contrary to Public Policy At the initial arraignment defense counsel moved to dismiss the trespass charge because Mr. Finch was a guest of the tenant and the prosecutor cmmtered that police had authority to order him off of the premises (A. 147). The court opined that police should not be given too much discretion and prophetically added that this case might serve as a test case on the statute and policy (A. 150). The right of tenants, in both private and public housing, to grant license and invite guests is well settled (Graves, 76 NY2d at 16), and statutes in derogation of the conunon law are to be narrowly constmed (Smalley v Bemben, 50 AD3d 1470 [4th Dept 2008]), especially where criminal liability is involved (see Vermont v Dixon (725 A2d 920 [1999]). In Dixon, the Supreme Court of Vennont, dealing with an identical statute, found the mere issuance of a stay-away order to an invited guest insufficient, as the People had to show the lawfulness of the order and establish that defendant had no right to be there. Noting that common law does not normally allow landlords to bar entry to tenant invitees, the Court narrowly constrained the interpretation so as not to inadvetiently create criminal liability not intended by the legislature. 17 While tenants and their guests are entitled to rights and protections under the law, recent cases like Ligon v City of New York (2013 US Lexis 2871 [SDNY Jan. 8, 2013 ]), show that police sometimes honor those rights in tl1e breach, especially where low income minorities are involved (see also Elena Goldstein-Kept Out: Responding to Public Housing No-Trespass Policies 38 Harv. C.R.-C.L. L. Rev. 215 [2003]) In Ligon, plaintiffs challenged the New York City Police Department's Trespass Affidavit Program (TAP), where police systematically stopped, questioned and searched mostly minority tenants and their guests in hopes oflmcovering evidence of wrongdoing. In a nearly two hundred page opinion, the Court (Scheindlin, J.) analyzed multiple cases and fmmd that officers routinely stopped and sometimes arrested such guests without reasonable suspicion, necessitating an injunction and ordering further police training on probable cause (Ligon, supra). In the case at bar, Mr. Finch, an Aftican-American, was routinely subjected to harassment and arrest even though he was m1questionably lawfully on the premises as the guest of a tenant. The Cmmty Court's finding that police somehow possessed reasonable cause to arrest for a non-existent trespass creates a myriad of problems. First and foremost it gives an incentive for police to engage in unconstitutional behavior. Even if there was not probable cause to stop and arrest for trespass, police would be authmized to search under the subsequent resisting charge when the defendant protested the initial charge. 18 Second, the Syracuse City Court judge at arraignment correctly noted that the prosecutor's position gave police far too much discretion (A. 148-150). The job of the police is to enforce, not create or interpret the law, and they should not be able to decide the necessary elements that constitute a crime. Third, the lower court's decision is inherently repugnant, both factually and legally. The trespass chaTge underlying the resisting arrest was legally void as Mr. Finch's license could not be extinguished by an arbitrary police order. Allowing the resisting arrest to stand is especially problematic, considering that police are civilly liable for false arrest when the charge is legally insufficient or does not exist (Stephens, 100 Misc2d at 267; Bonnau, 303 NY at 721; Baisch, 76 Misc2d at 1006). F. The Matter Presents a Question of Law Preserved for This Court's Review Probable cause determinations involving questions of fact, or mixed questions of law and fact, are generally beyond this Court's jurisdiction, but when the issue is the minimum showing necessary to establish probable cause, that presents a question of law for this Court's review (People v Bigelow, 66 NY2d 417, 420 [1985]). In the present case there was no dispute or question as to the relevant facts, as the record showed and County Court found that police knew that Mr. Finch was a guest of the tenant and that his license could not be revoked by an arbitrary stay-away order issued by police (A. 12). 19 This matter is also reviewable as it involves the mmmmm showing necessary to establish probable cause. Resisting arrest requires at its minimum an authorized arrest, and anest for conduct which does not legally constitute an offense is not an authorized arrest (Jones, 9 NY3d at 262; Peacock, 68 NY2d at 676; Stevenson, 31 NY2d at l 08). Absent such proof there can be no probable cause. Defense counsel repeatedly moved to dismiss the trespass charges because Mr. Finch was a guest of the tenant, starting at the initial arraigmnent (A. 147-148). Defense counsel also served and filed written motions to dismiss the trespass and resisting an·est, noting that Mr. Finch was an invitee and police lacked a lawful basis to arrest (A. 52-53). That was clearly the tlm1st of the defense at trial, as both Mr. Finch and Ms. Bradley testified that he was not trespassing because he was her invited guest (A. 574, 635), and defense counsel argued it in her sununation (A. 699). Defense counsel's motion for a trial order of dismissal ofthe resisting anest charge specified that Detective Quatrone had no good faith basis to believe that Mr. Finch had committed any crime (A. 521), and that motion was renewed at the close of proof (A. 667). For good measure defense cmmsel also submitted a CPL 330 motion alleging the same grounds prior to sentencing (A. 69-71 ). The trial comi was provided timely notice and opporhmity to correct the error, thus serving the purpose ofCPL 470.05 (2) (see People v Gray, 86 NY2d lO [1995]). 20 No other basis for affim1ance of the resisting arrest conviction was raised, considered or decided by the Cmmty Court below and should not be considered by this Court (see People v LaFontaine, 92 NY2d 470, 474 [1998]; People v Concepcion, 17 NY3d 192 [2011]; CPL 470.35 [1]). To the extent this Court finds that the issue was not preserved, trial cmmsel's failure to raise a clear cut and dispositive defense like legal insufficiency cmmot be dismissed as losing trial strategy, but represents a deprivation of Mr. Finch's constitutional right to effective assistm1ce of counsel (People v Turner, 5 NY3d 476, 481 [2005]; Strickland v Washington, 466 US 668 [1984]; compare People v Hobot, 84 NY2d 1021 [1995]). G. Conclusion Police knew that Mr. Finch was a guest of the tenant and thus a licensee. His legal stahls was unaffected by police issuance of arbitrary orders to stay off the premises. The County Court cmTectly found that police lacked the authority to issue such orders so as to limit fue tenant's rights to invite guests on to the property, and that the stay-away order could not render Mr. Finch's lawful presence on the premises into 311 unlawfill trespass. Lacking an authorized arrest for the trespass, the resisting charge was legally insufficient as well. The County Comi's contemporm1eous determination that the resisting mTest charge was somehow suppmied by probable cause was not just legally and fachlally repugnant, but also presents an error of law preserved for this Court's 21 revrew. Allowing police a "good faith" exception to anest citizens upon their mistaken interpretation of the law provides them with too much discretion and is contrary to public policy. CONCLUSION Wherefore, for the reasons set forth in Point I, Mr. Finch respectfully requests that his conviction for Resisting Arrest be reversed and dismissed. Dated: April 22, 20 13 22 Respectfully submitted, ~~ Philip Rothschild Hiscock Legal Aid Society Attorneys for Appellant 351 South Wanen Street Syracuse, New York 13202 (315) 422-8191
