The People, Respondent,v.Nature G. Finch, Appellant.BriefN.Y.January 16, 2014 To Be Argued By: JAMES P. MAXWELL, ESQ. (TIME REQUESTED: 15 MINUTES) ============================================================== COURT OF APPEALS STATE OF NEW YORK ------------------------------------------------- THE PEOPLE OF THE STATE OF NEW YORK, Respondent, vs. NATURE FINCH, Defendant-Appellant. ============================================================== RESPONDENT’S BRIEF ============================================================== WILLIAM J. FITZPATRICK, ESQ. Onondaga County District Attorney Attorney for Respondent Criminal Courthouse, 4 th Floor 505 South State Street Syracuse, NY 13202 Tel: (315) 435-2470 Fax: (315) 435-3969 JAMES P. MAXWELL, ESQ Chief Assistant District Attorney JOSEPH J. CENTRA, ESQ. Assistant District Attorney Of Counsel DATE COMPLETED: June 19, 2013 =================================================================== TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES………………………………………………………………. i QUESTION PRESENTED………………………………………………………………… 1 PRELIMINARY STATEMENT…………………………………………………………... 1 STATEMENT OF FACTS………………………………………………………………… 2 POINT I THE POLICE OFFICER HAD A REASONABLE BELIEF THAT DEFENDANT WAS COMMITTING A CRIME WHEN THE OFFICER ARRESTED DEFENDANT ON MAY 27, 2009, AND THUS THE PEOPLE PRESENTED SUFFICIENT PROOF THAT DEFENDANT WAS GUILTY OF RESISTING ARREST………………………………………... 6 CONCLUSION…………………………………………………………………………… 16 i TABLE OF AUTHORITIES PAGE CASES City of Bremerton v Widell, 146 Wash 2d 561 (Supreme Court of Washington 2006)….. 14 Commenweath v Hicks, 267 Va 573 (Supreme Court of Virginia 2004)………………… 14 Davis v City of New York, 902 F Supp 2d 405 (SD NY 2012)………………………….. 15 Floyd v City of New York, US Dist Ct, SD NY, 813 F Supp 417 (2011)……………….. 15 Jackson v Virginia, 443 US 307 (1979)……………………………………………………. 7 Ligon v City of New York, US Dist Ct, SD NY, 12 Civ 2274, Scheindlin, J., 2013 WL 628534 (Feb. 14, 2013)………………………………………………………… 14 People v Bertino, 93 AD2d 972 (4 th Dept 1983)………………………………………….. 12 People v Bynum, 70 NY2d 858 (1987)……………………………………………………. 6 People v Contes, 60 NY2d 620 (1983)…………………………………………………….. 7 People v Coulanges, 264 AD2d 853 (2 nd Dept 1999), lv denied 94 NY2d 878 (2000)……. 9 People v Gonzales, 99 NY2d 76 (2002)…………………………………………………… 7 People v Gray, 86 NY2d 10 (1995)………………………………………………………... 6 People v Hawkins, 11 NY3d 484 (2008)…………………………………………………... 6 People v Hines, 97 NY2d 56 (2001), rearg denied 97 NY2d 678 (2001)………………….. 6 People v Jensen, 86 NY2d 248 (1995)…………………………………………………….. 9 People v Leonard, 62 NY2d 404 (1984)………………………………………………….. 10 People v Martin, 222 AD2d 528 (2 nd Dept 1995), lv denied 88 NY2d 850 (1996)………. 11 People v Mohamadou, 182 Misc 2d 77 (Crim Ct 1999)……………………………….. 9, 11 People v Peacock, 68 NY2d 675 (1986)…………………………………………………… 9 People v Sweeney, 15 AD3d 917 (4 th Dept 2005), lv denied 4 NY3d 891 (2005)………… 6 ii People v Thomas, 239 AD2d 246 (1 st Dept 1997), lv denied 90 NY2d 911 (1997)……… 11 People v Williams, 25 NY2d 86 (1969)………………………………………………... 9, 11 STATUTES CPL 140.10 (1) (b)…………………………………………………………………………. 7 CPL 470.05 (2)…………………………………………………………………………….. 6 CPL 470.35 (1)…………………………………………………………………………….. 7 Penal Law § 140.00……………………………………………………………………….. 10 Penal Law § 205.30………………………………………………………………………… 7 OTHER AUTHORITY Howard, Subsidized Housing Policy: Defining the Family, 22 Berkeley Journal of Gender, Law & Justice, 97 at 122-124 (2007)…………………………………………. 14 1 COURT OF APPEALS STATE OF NEW YORK _______________________________________________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, vs. NATURE FINCH, Defendant-Appellant. _______________________ Information Nos. 2009-272916; 2009-294345; 2009-254924 Index No. 2011-0627 ______________________________________________________ RESPONDENT’S BRIEF _______________________________________________________ QUESTION PRESENTED 1. DID THE POLICE OFFICER HAVE A REASONABLE BELIEF THAT DEFENDANT WAS COMMITTING A CRIME WHEN DEFENDANT RESISTED ARREST ON MAY 27, 2009? The courts below determined that there was sufficient evidence to find defendant guilty of resisting arrest. PRELIMINARY STATEMENT Nature Finch (defendant) appeals from an order of Onondaga County Court (Aloi, J.) entered on August 23, 2012 (Appendix [A] at 6). That order reversed and vacated the judgment convicting defendant of two counts of criminal trespass in the third degree and affirmed one count of resisting arrest (A 15). Defendant was found guilty of those charges on May 18, 2011, after a jury trial in Syracuse City Court (Dougherty, J.) (A 758). Syracuse City Court Judge Stephen J. Dougherty sentenced defendant to consecutive sentences of 90 days in jail on one 2 count of criminal trespass in the third degree, 90 days in jail for the second count of criminal trespass in the third degree and 12 months in jail for resisting arrest (A 773). The Hon. Eugene F. Pigott, Jr., Associate Judge of the Court of Appeals, granted defendant permission to appeal to the Court of Appeals on December 13, 2012 (A 2). STATEMENT OF FACTS On April 28, 2009, in Information No. 09-254924, defendant was charged with criminal trespass in the third degree when he was found trespassing on Parkside Commons (Parkside) property in the city of Syracuse on April 28, 2009 (A 16). On May 12, 2009, in Information No. 09-272916, defendant was charged with criminal trespass in the third degree when he was again found trespassing on Parkside’s property on May 12, 2009 (A 18). On May 27, 2009, in Information No. 08473275, defendant was charged with criminal trespass in the third degree and resisting arrest when he was found trespassing on Parkside’s property on May 27, 2009 (A 19). On April 29, 2009, defendant was arraigned on the first charge of criminal trespass in the third degree in violation of Penal Law § 140.10 (a) (A 145-152). On May 13, 2009, defendant was arraigned on the second charge of criminal trespass in the third degree in violation of Penal Law § 140.10 (a) (A 153-166). On May 28, 2009, defendant was arraigned on the third charge of criminal trespass in the third degree in violation of Penal Law § 140.10 (a) and resisting arrest in violation of Penal Law § 205.30 (A 167-170). The People made a motion for joinder of all three of defendant’s case, since each involved a charge of criminal trespass in the third degree involving the same location (A 83-85), and the cases were tried together. On April 28, 2009, defendant was in the lobby of 1809 East Fayette Street, a building located on Parkside’s property (A 453). Parkside is a 400 unit multi-family apartment complex that receives Federal funding (A 278, A 302). The management of the property hires Syracuse 3 Police Officers to patrol the complex, which is in a high-crime area (A 293, A342-343, A 453). Parkside has numerous notices posted around its premises stating that it is private property, that there is no trespassing and no loitering, and that the property is monitored by cameras (A 282- 283). The property also has a seven foot fence surrounding it with electric sliding gates that no longer work (A 289-290). This fence also has 12 to 15 “No Loitering” signs affixed all around the outside of the fence (A 290). Nicole Smith was the property manager of Parkside (A 278). In that capacity, she gave the Syracuse Police permission to ask non-residents of Parkside to leave the property and to arrest people who are on the property who are not supposed to be there (A 294-297). Nicole Smith met defendant when defendant and Calleasha Bradley came to see her. Bradley was a resident of Parkside and was defendant’s girlfriend (A 298). Defendant asked Smith for permission to be on the property so that he could see his son (A 298). Smith told defendant that he could see his son, but that he would need to be with his son when on the property, and not on the property doing other things because they had a “no loitering” policy (A 298). Defendant had seen the “no trespassing” signs around Parkside’s property, but on April 28, 2009, defendant was found in the lobby of Parkside with three other individuals (A 454, A 603). Defendant was not with Calleasha Bradley or his son (A 517). Syracuse Police Detectives James Quatrone and Todd Hood, who were assigned to patrol Parkside that day, saw people in the lobby and went inside (A 344, A 454). They detected the smell of marijuana in the lobby and saw a marijuana cigarette on the floor between where defendant and another man, Kashaine Wilkerson, were standing (A 346, A 454). Wilkerson, who defendant called as a witness at trial, admitted that he had four bags of marijuana on his person that day (A 555). Defendant had a knife on his person (A 351). Quatrone had warned defendant in the past not to loiter in the 4 entranceways in Parkside, and Quatrone testified that Nicole Smith had told Quatrone that defendant was not supposed to be on the property (A 455). Hood had also warned defendant, before April 28, 2009, that defendant was not supposed to be on the property (A 346). Since defendant was not supposed to be on the premises of Parkside, Quatrone placed defendant under arrest for criminal trespass (A 454, 456-457). Calleasha Bradley was not present at the time defendant was arrested, but did come outside while they were waiting for a car to take defendant to the Justice Center (A 477). Quatrone did not recall defendant saying during this encounter that he was on the property as a guest of Calleasha Bradley (A 473, A 476, A 501). Quatrone notified Smith that he had arrested defendant (A 457). After learning of this arrest, Smith told Quatrone and Hood that defendant was not allowed on the property (A 336). Smith revoked defendant’s permission to go see his son after defendant was loitering with other persons on the property at a time when a knife and marijuana was found (A 299). On May 12, 2009, Quatrone and Hood once again found defendant in the lobby of a building in Parkside (A 353, A 458). Quatrone told defendant once again that he was not supposed to be on the premises and arrested him for criminal trespass (A 458). Defendant stated that he was on the premises to watch his son (A 459). There was no child present when defendant was arrested (A 517). On May 27, 2009, Quatrone was driving thorough Parkside when he saw defendant alone in a parking lot on the premises of Parkside (A 460). Quatrone once again told defendant that he was not supposed to be on the premises and told him he was under arrest (A 461). Defendant stated that Quatrone could not arrest him and attempted to walk away from Quatrone when Quatrone attempted to handcuff him (A 461-462). Quatrone had to lift defendant off his feet and put him on the hood of his car to attempt to arrest him (A 462). Quatrone had defendant on his stomach on the hood of his car and defendant trapped his own right arm between his body and 5 the hood of the car (A 462). It took the assistance of two other officers to pull defendant’s arm from under his body and successfully handcuff and arrest him (A 462, 464). When the People rested, defendant moved to dismiss the charges, arguing that the charge of resisting arrest should be dismissed because Quatrone knew the property was not completely enclosed by fences and because Nicole Smith did not tell defendant in writing that he was not permitted on the property, and thus Quatrone did not have a good faith basis to believe that defendant had committed a crime (A 521). Defendant, testifying in his own behalf, claimed that when he spoke to Nicole Smith after the April 28, 2009 arrest, she told him that he could be on the property, but would not put that in writing and suggested that he should try to have an escort with him (A 584, A 618). Defendant and Calleasha Bradley testified that on May 27, 2009, they had gone to Nicole Smith’s office, but she did not meet with them (A 591, A 647). They then went in different directions, with Bradley going to visit someone in another apartment and defendant headed toward Bradley’s apartment (A 592, A 649). Defendant claimed that Quatrone placed him in handcuffs before the other officers arrived during the May 27, 2009 arrest (A 596-598). Defendant was found guilty of the two counts of criminal trespass in the third degree from May 12, 2009 and May 27, 2009, not guilty for the one count of criminal trespass in the third degree from April 28, 2009, and guilty of the one count of resisting arrest from May 27, 2009 (A 758). Defendant then brought an appeal to Onondaga County Court. On August 23, 2012, the Honorable Anthony F. Aloi reversed and vacated the convictions for both counts of criminal trespass in the third degree and dismissed the accusatory instruments charging those counts, and affirmed the conviction of resisting arrest (A 15). 6 POINT I THE POLICE OFFICER HAD A REASONABLE BELIEF THAT DEFENDANT WAS COMMITTING A CRIME WHEN THE OFFICER ARRESTED DEFENDANT ON MAY 27, 2009, AND THUS THE PEOPLE PRESENTED SUFFICENT PROOF THAT DEFENDANT WAS GUILTY OF RESISTING ARREST In Point I of his brief (at 8-22) defendant asks this Court to reverse the judgment of conviction of resisting arrest, claiming that the proof was legally insufficient to prove that defendant was guilty of resisting arrest. Defendant’s claim that there was insufficient evidence to prove defendant guilty of resisting arrest is based upon his assertion that the police were not authorized to arrest defendant because defendant was a licensee of a tenant of Parkside. This Court should deny this request for relief. To the extent that defendant is now making claims that he did not raise in the trial court or that involve either questions of fact or mixed questions of law and fact, this Court lacks jurisdiction to grant relief. A defendant is required to make claims in a timely manner before the trial court in order to preserve those claims for appellate review as a matter of law (see CPL 470.05 [2]; People v Gray, 86 NY2d 10, 19-20 [1995]). This requirement ensures that all proof presented at trial that was used by the jury in rendering a verdict will be considered by the reviewing court, including proof presented by the defense (People v Hines, 97 NY2d 56, 61 [2001], rearg denied 97 NY2d 678 [2001]). Accordingly, a non-specific claim does not preserve an issue for review (see People v Gray, 86 NY2d at 20 [objections must be specific in order to adequately bring the lower court’s attention to the alleged error]; see generally People v Hawkins, 11 NY3d 484, 492 [2008]; People v Bynum, 70 NY2d 858, 859 [1987] [general motion to dismiss at the close of the People’s evidence is insufficient to preserve a claim regarding establishment of a particular element of a crime charged]; People v Sweeney, 15 AD3d 917 [4 th Dept 2005], lv denied 4 NY3d 891 [2005] [general motion to dismiss, not directed at the 7 alleged errors raised on appeal, is insufficient to preserve the claim for appellate review]). This Court does not have the authority to review any claims that it finds were not preserved by defendant. Also, this Court may only review questions of law, not mixed questions of law and fact or questions of fact (CPL 470.35 [1]; People v Gonzales, 99 NY2d 76, 83 [2002] [holding that the issue of whether the police had probable cause to arrest was a mixed question of law and fact not reviewable by the Court of Appeals because the probable cause determination by the lower courts had support in the record]). Accordingly, any of the arguments he now makes that are unpreserved for this Court’s review or that involve mixed questions of law and fact or questions of fact cannot be reviewed in this appeal. In any event, should this Court review any of defendant’s arguments, it should find those arguments meritless. In determining whether there is sufficient evidence to sustain a conviction, this Court must, viewing the evidence in the light most favorable to the prosecution, determine “whether any rational finder of fact could have found the elements of the crime [were established] beyond a reasonable doubt” (People v Contes, 60 NY2d 620, 621 [1983], quoting Jackson v Virginia, 443 US 307, 319 [1979] [emphasis in original]). To convict a person of resisting arrest the People must show that the defendant intentionally prevented or attempted to prevent a police officer from effecting an authorized arrest of the defendant (Penal Law § 205.30). A police officer has the authority to arrest a person for a crime when the officer has reasonable cause to believe that the person has committed a crime (CPL 140.10 [1] [b]). In this case, a rational fact- finder could conclude, as the jury did, that Detective Quatrone had a reasonable belief that defendant was trespassing on the grounds of Parkside when Quatrone saw defendant there on May 27, 2009. 8 At defendant’s trial, the court properly, and without objection, instructed the jury that a police officer is authorized to make an arrest when the officer has reasonable cause to believe that the person has committed a crime (A 747). The court explained to the jury that “[r]easonable cause does not require proof that the crime was, in fact, committed. Reasonable cause exists when a police officer has knowledge of facts and circumstances sufficient to support a reasonable belief that a crime has been or is being committed” (A 747). The proof demonstrated that Detective Quatrone had a reasonable belief that defendant was committing the crime of criminal trespass when he arrested defendant on May 27, 2009. On two previous occasions within one month of May 27, 2009, Quatrone had arrested defendant for trespassing at Parkside. On April 28, 2009, Quatrone witnessed defendant in the entranceway of a building on the premises of Parkside (A 454). The police had previously warned defendant that he was not supposed to be on Parkside’s property (A 346, A 455). Quatrone had been informed by Smith, the manager of Parkside, that defendant was not supposed to be on the premises (A 455). Also, Quatrone had previously told defendant that he was not supposed to be loitering in the entranceways in Parkside (A 455). Since defendant was not lawfully allowed on the premises, Quatrone arrested him for criminal trespass in the third degree (A 454, 456-457). Nicole Smith, after that April 28, 2009 arrest, told Quatrone that defendant was not allowed on Parkside’s property (A 336). On May 12, 2009, Quatrone once again found defendant on the premises of Parkside and again arrested him for criminal trespass in the third degree (A 458). On May 27, 2009, Detective Quatrone saw defendant on the premises of Parkside for a third time and attempted to arrest defendant for criminal trespass in the third degree (A 461). Defendant told Quatrone that he could not arrest him and attempted to walk away from Quatrone when Quatrone tried to handcuff him (A 462-463). Quatrone had to lift defendant off his feet 9 and put him on the hood of his car to attempt to arrest defendant (A 462). Quatrone had defendant on his stomach on the hood of his car and defendant trapped his right arm under his body to prevent Quatrone from arresting him (A 462). It took the assistance of two more officers to pull defendant’s arm from under his body and effectively handcuff and arrest him (A 462, 464). A key element of resisting arrest is the existence of an authorized arrest, including a finding that the arrest was based on probable cause (People v Jensen, 86 NY2d 248, 253 [1995]; People v Peacock, 68 NY2d 675, 676-677 [1986]). In New York, probable cause is a prerequisite to an authorized arrest (People v Mohamadou, 182 Misc 2d 77, 79 [Crim Ct 1999]). Probable cause exists where “the facts and circumstances known to the arresting officer would warrant a reasonable person, who possessed the same expertise as the officer, to conclude that a crime was being or had been committed by the defendant” (People v Coulanges, 264 AD2d 853 [2 nd Dept 1999], lv denied 94 NY2d 878 [2000]). In People v Williams, representatives of the Joint Committee on Equal Opportunity had permission for nine protestors to occupy the governor’s office (People v Williams, 25 NY2d 86, 87 [1969]). When seven people arrived to add to three already in the office, a security guard stated that one would have to leave (id. at 88). The protestors refused. At the governor’s orders, the police were sent to ask the seven people to leave. When they again refused, the police attempted to arrest the protestors, which they resisted (id.). This Court upheld the protestors’ conviction for resisting arrest (id. at 91). There was a question of whether the police knew the Joint Committee on Equal Opportunity’s original entry into the governor’s office was with his permission (id. at 90). But the Court held that an officer “could reasonably believe that the crime of unlawful intrusion was being committed in his 10 presence by merely observing the presence of persons on property which they apparently had no right to enter” (id.). Owners of semi-public property have a right to exclude people from the premises. A person who “enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless he defies a lawful order not to enter or remain, personally communicated to him by the owner of such premises or other authorized person (Penal Law § 140.00; see People v Leonard, 62 NY2d 404, 408 [1984]). At the time of the May 27, 2009 arrest, Quatrone had a sworn statement from Smith, the manager of Parkside, stating that Quatrone had the authority to arrest anyone found on the premises that had been told previously to refrain from trespassing (A 132, A 296, A 325). Smith had also told Quatrone that defendant was not supposed to be on Parkside’s property (A 132-133, 455). Smith gave the police the authority to arrest, and requested that they arrest, anyone on Parkside’s property previously warned not to trespass on the property (A 132, A296, A 325). Parkside is a public housing complex that has signs posted prohibiting trespassing by non- residents. Quatrone had knowledge that defendant lived at an address on Brighton Avenue, not Parkside Commons. Quatrone had previously told defendant he was not allowed on the premises and had previously arrested him for being on the premises. Defendant was alone when Quatrone saw him on the property on May 27, 2009, not with his child or accompanied by Bradley. These facts gave Quatrone the probable cause needed to authorize the May 27, 2009 arrest of defendant for criminal trespass in the third degree. Thus, in this case, on May 27, 2009, Detective Quatrone had reasonable cause and probable cause to arrest defendant. Quatrone had a reasonable belief that defendant was committing the crime of criminal trespass, and therefore he was authorized to arrest defendant. Defendant resisted this authorized arrest by walking away from Quatrone after Quatrone had told 11 him that he was under arrest and by tucking his arm under his body to prevent Quatrone from handcuffing him. Defendant claims that this arrest was not “authorized” because the police knew that defendant was a guest of a tenant and thus had license to be there (defendant’s brief at 21). It is true that the intermediate appellate court reversed defendant’s conviction of criminal trespass in the third degree, which was the charge that was the basis of the arrest that defendant resisted, and that charge was reversed by the intermediate appellate court. But, as the trial court instructed the jury in this case, the People were not required to prove at trial that the underlying crime was committed. Rather, the People had to prove – and did prove – that Quatrone had a reasonable belief that a crime was being committed (see A 747). Thus, defendant’s claim lacks merit. The crime of resisting arrest is independent of its underlying crime. New York courts have upheld convictions for resisting arrest even where the charges related to the crimes for which police were attempting to make the arrest have been dismissed (People v Williams, 25 NY2d at 90; People v Mohamadou, 182 Misc 2d at 82). In People v Martin (222 AD2d 528, 528 [2 nd Dept 1995], lv denied 88 NY2d 850 [1996]), three officers saw the defendant with a sawed off shotgun on a street corner and attempted to arrest the defendant. The defendant resisted and a struggle ensued. The defendant was charged with criminal possession of a weapon in the second and third degree and resisting arrest. The defendant was acquitted of the weapons charges, but was convicted of resisting arrest (id.). The court held that the evidence was legally sufficient to establish the defendant was guilty of resisting arrest because the officers had probable cause to arrest the defendant (id. at 529). The court further held that the acquittal on the weapons charges did not preclude a conviction for resisting arrest (see also People v Thomas, 239 AD2d 246, 247 [1 st Dept 1997], lv denied 90 12 NY2d 911 [1997]; People v Bertino, 93 AD2d 972 [4 th Dept 1983]), where courts held the defendants were properly convicted of resisting arrest although acquitted of all other charges). In this case, on May 27, 2009, defendant was arrested for criminal trespass in the third degree for the third time in a one month period by Detective Quatrone. Defendant further argues that since Quatrone knew defendant was a licensee of Bradley on Parkside’s property that he did not have the authority to make a lawful arrest. This claim is without merit. Defendant argues in his brief (at 14-15) that while the question of whether the police had probable cause to make an arrest is normally a mixed question of law and fact, this case presents a question of law because the facts are not in dispute. That is, according to defendant, the police arrested defendant despite knowing that he was a licensee. That claim is not supported by the record. During Quatrone’s testimony, he indicated that defendant did not tell him that he was a licensee of Bradley, nor did Quatrone recall Calleasha Bradley telling him that defendant was on the property as a licensee of Bradley (A 473, 476, 501). Further, Bradley was never present with defendant at any of the three times he was arrested. On April 28, 2009, when defendant was in the lobby of a building on Parkside’s property, Bradley was not present until after defendant’s arrest. Detective Hood recalled Bradley claiming that defendant was her guest (A 378). But Bradley was not with defendant when Quatrone and Hood saw defendant in the lobby after they had previously warned him that he was not supposed to be on the property. And Nicole Smith told the police, after the April 28, 2009 arrest, that defendant was not supposed to be on the property (A 299). Yet on May 12, 2009, defendant was again in the lobby of a building on Parkside’s property, and Bradley was not present. Defendant claimed that on this date he was there watching his child, but there was no child present with defendant (A 517). On May 27, 2009, when defendant was located in a parking lot on Parkside’s premises, Bradley was not present (A 480). At no point during Quatrone’s testimony did he state that he knew defendant 13 was on Parkside’s premises as a licensee of Bradley. Defendant’s claim is without merit and this Court should affirm defendant’s conviction. Defendant argues that probable cause was based on a mistaken belief by the police that – as a matter of law – a unilateral order by the police extinguished defendant’s license to be present. Defendant did not argue in the trial court, however, that the police were acting upon a mistaken legal belief. Instead, when the People rested, defendant argued that Quatrone lacked a good faith basis to arrest defendant because the property was not completely surrounded by fences and because Nicole Smith did not tell defendant in writing that he was not permitted to be there (A 521). In addition to not being preserved, defendant’s “mistake of law” argument is not supported by the record. The police were not relying solely on their own order. The jury was presented with ample proof that Quatrone had a reasonable belief that defendant was trespassing on Parkside’s property on May 27, 2009, because Quatrone had been told by Smith that defendant was not to be there, and had personally arrested him twice within the previous 30 days for being there. In order for this Court to grant relief based on defendant’s argument, this Court would have to exceed its jurisdiction and engage in fact finding. And even accepting a claim that defendant had license to be on the property with his son, defendant was alone when found at Parkside by Quatrone on May 27, 2009. Detective Quatrone’s belief that defendant was trespassing on May 27, 2009, was reasonable based on the facts of this case. It was reasonable for Quatrone to believe that Nicole Smith as the manager of this property had the authority to exclude defendant, and that defendant was not a guest of a tenant on that day. And even though the intermediate appellate court found that the People did not prove at trial that defendant was trespassing, that court acknowledged that 14 Quatrone, in order to make an authorized arrest, did not to “possess facts that would establish beyond a reasonable doubt that the underlying crime was actually committed” (A 15). Defendant argues that public policy favors his position because he was arrested even though he was “unquestionably lawfully on the premises as the guest of a tenant” (defendant’s brief at 18). Defendant bases this argument on his own view of the record, a view not supported by a review of the proof in a light most favorable to the People. While defendant seems to be advocating for the rights of tenants, he himself was not a tenant of Parkside. The residents of public housing that is located in a high-crime area deserve a safe place to live. Those residents might greatly appreciate efforts by the management to exclude visitors who are not on the property for a legitimate purpose. Here, the police had a reasonable cause to conclude that defendant was trespassing on Parkside’s property on May 27, 2009 after the manager of the property told the police that defendant was not supposed to be there. The police had a reasonable belief that the manager of Parkside had the authority to exclude defendant from the property (see Commonwealth v Hicks, 267 Va 573, 580-585 [Supreme Court of Virginia 2004] [upholding a housing authority’s no-trespass policy against a person who claimed he was delivering diapers to the mother of his child]; see also City of Bremerton v Widell, 146 Wash 2d 561, 575-579 [Supreme Court of Washington 2006] [upholding a housing authority’s anti-trespassing policy and ruling that a rational juror could have concluded that the fiancé of a tenant exceeded the scope of his invitation to be on the property because he was alone]; see generally Howard, Subsidized Housing Policy: Defining the Family, 22 Berkeley Journal of Gender, Law & Justice, 97 at 122-124 [2007]). Defendant in his brief (at 18) relies on a case involving a pending class action lawsuit filed against the New York Police Department (NYPD) for their alleged abuse of the department’s “stop and frisk” practices (Ligon v City of New York, US Dist Ct, SD NY, 12 Civ 15 2274, Scheindlin, J., 2013 WL 628534 [Feb. 14, 2013] [challenging the policies as applied to certain private apartment buildings in the Bronx enrolled in the Trespass Affidavit Program (TAP); see also Davis v City of New York, 902 F Supp 2d 405 [SD NY 2012] [challenging “stop and frisk” as used in public housing complexes]; Floyd v City of New York, US Dist Ct, SD NY, 813 F Supp 417 [2011] [challenging police policies overall]). Ligon and these two other cases do not support defendant’s claim. In Ligon, the trial court granted a preliminary injunction ordering the NYPD to develop and implement policies that address the problem of unconstitutional trespass stops outside TAP buildings. The court found a pattern of police stopping people without reasonable suspicion, some of whom did no more than come and go from designated buildings. The police searched some of these individuals. The court’s opinion does not indicate that police knew the individuals or had seen them before, or that the individuals were doing anything besides walking or standing near the building. The court found that the police did not have reasonable suspicion to support stopping and searching many of these individuals. In this case, defendant was someone who was known to the Parkside management and police who patrolled the complex. Nicole Smith told the police before May 27, 2009, that she had revoked defendant’s permission to visit Parkside (A 299). This specific information known to the police about defendant distinguishes his situation from the actions of the NYPD described in Ligon. Detective Quatrone had a reasonable belief that defendant was trespassing on May 27, 2009, and was making an authorized arrest when defendant resisted that arrest. This Court should affirm defendant’s conviction of resisting arrest. 16 CONCLUSION The People respectfully ask for this Court to affirm defendant’s conviction. Respectfully submitted, WILLIAM J. FITZPATRICK, ESQ Onondaga County District Attorney By: _______________________________ JAMES P. MAXWELL, ESQ. Chief Assistant District Attorney Attorney for Respondent Criminal Courthouse, 4 th Floor 505 South State Street Syracuse, NY 13202 Tel: (315) 435-2470 JAMES P. MAXWELL, ESQ. Chief Assistant District Attorney JOSEPH J. CENTRA, ESQ. Assistant District Attorney Of Counsel DATED: June 19, 2013