The People, Respondent,v.Nature G. Finch, Appellant.BriefN.Y.January 16, 2014ORIGINAL To Be Argued By: PHILIP ROTHSCHILD Time Requested: 15 Minutes QCourt of ~ppeals ~tate of 1F!etu ~ork THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- NATURE FINCH, Appellant. REPLY BRIEF FOR APPELLANT Brief Completed: June 27, 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 AUTI-IORITIES .. ........ .......... .............. ...... .. . ..... .. ....... ... ..... ... . . .. ...... ...... ......... ii PRELIMIN"ARY STATEMENT .. ... .. ..... ....... . .. .. .... .. ..... .. ....... .. .. . .. .. .... .. .... .. .... .. .................. 1 STATEMENT OF FACTS .... ............. ........... ............. ... ... .... ....... .. .... ... .. ...... .. . .. . ... . . .. . .... .. . 1 ARGUMENT ..... .. ... . . .... ....... . ... .... .. .. . ... .... .... .... ........ ... . ... .. .... ... . .... ..... ......... . .. . .. .. .. .. .. . ... . 3 POIN"T I: POINT II: THIS CASE DOES NOT PRESENT A MIXED QUESTION OF LAW AND FACTS REGARDING THE REASONABLE OR PROBABLE CAUSE TO ARREST .. ...... ...... .. .... .. .. ... .. ... . . ........ .. ....... ... ........ ..................... .. ............. 3 MR. FIN"CH' S LICENSE WAS NOT INVALIDATED BY THE FACT THAT HE WAS USING COMMON AREAS OR UNACCOMPANIED BY THE TENANT AT THE TIME OF HIS ARREST ......... . .. ..... . ..... .... ....... ... ..... . . ........ .. ....... . . .... 6 POINT III: THE LACK OF PROBABLE CAUSE TO ARREST WAS AN ISSUE PRESERVED FOR THIS COURT'S REVIEW BY DEFENSE COUNSEL' S REPEATED MOTIONS TO DISMISS WHICH GAVE THE TRIAL COURT NOTICE AND OPPORTUNITY TO CORRECT THE ERROR ..... ..... .... .. . .. . .... . . .... 9 CONCLUSION .. .. ..... . .. . ..... ; ..... .... .. . . .. ...... .. .... .. .... .. .. .. .. .. ... .. . .... .. .. . .......... .. .... ...... ..... .. .. 10 1 TABLE OF AUTHORITIES Cases 100 W 72nd St. Assocs. v Murphy, 144 Misc2d 1036 [New York County 1989] ... 7 Arbee v Collins, 219 Ga. App. 63 [Georgia Court of Appeals 1995] ....................... 7 Ligon v City ofNew York, (US Dist Ct, SDNY, 12 Civ 2274, Scheind1in, J. , 2013 WL 628534 [Feb. 14, 2013]) ......... ..... ............ .. .. ........................ ...... ............. ........ 6 Baisch v State, 7 6 Misc2d 1006 [Ct. of Claims 197 4] ... .. .............. .............. ........ ..... 5 Bonnau v State, 303 NY 721 [1951] ................................ .... ...... .......................... ..... 5 Bremerton v Widell, 146 Wash2d 561 [2006] ....................................................... 7, 8 Commonwealth v Hicks, 267 Va 573 [2004] ............... ................ ........ ........ ........ ..... 8 People v Bigelow, 66 NY2d 417 [1985] .................................................................. . 6 People v Coulanges, 264 AD2d 853 [2d Dept 1999] .................. ........................ ..... 5 People v Gray, 86 NY2d 10 [1995] ....................................................... ................... 1 0 People v Hunter, 17 NY2d 725 [20 11] .......................................... ... ........................ 9 People v Jones, 9 NY3d 259 [2007] ..................................... ... ....... ......................... 5 People v Konikov, 160 AD2d 146 [2d Dept 1990] ................... ..... ................ ............. 3 People v Leonard, 62 NY2d 404 [1984] ................. .. ........ .. ....................... ...... ......... 10 People v Marrero, 69 NY2d 382 [1987] ................... ................................................ 5 People v Munafo, 50 NY2d 326 [1980]. ........................................ ............................. 7 People v Niepoth, 55 AD2d 970 [3d Dept 1977] .... ................... .............. .. ...... .. ....... 7 People v Scott, 26 NY2d 286 [1970] ..... ... ...... ..... ...... ............... .................................. 7 People v Stephens, 100 Misc2d 267 [Suffolk County Dist. Ct. 1979]; ................. ... 5 People v Voliton, 83 NY2d 192 [1994] .......... ... .................. ...................................... 5 People v Williams, 25 NY2d 86 [1969] .......... ... ............ .... .... ...... ........ ............. ........ 4 Vermont v Dixon, 169 Vt 15 [1 999] ............... ... ................ .... .................. ........ .. .. ....... 7 Statutes CPL 470.05 (2) ...... .. .......................... .................. ............................ ........ .. ............... 10 Other Authorities Restatement of the Law, Torts 2d, § 189 ...... .................. ..................... ...... .. ............. 7 11 ·I PRELThflNARYSTATEMENT Mr. Nature Finch appeals from a final decision of the County Court, Onondaga County, which partially affirmed a judgment of the Syracuse City Court, rendered May 19, 2011 . Mr. Finch filed a brief with this Court on or about April 22, 2013, and received a copy of the Respondent's Brief on or about June 19, 2013 . This brief is submitted in reply to the District Attorney's contentions that (1) a mixed question of law and fact is presented regarding the lack of reasonable or probable cause to arrest, (2) the license was invalid because Mr. Finch was in a common area and not accompanied by the tenant at the time of his arrest, and (3) counsel failed to preserve the issue for this Court's review despite multiple motions to dismiss the resisting arrest charge because there was no legal basis for the arrest. STATEMENT OF FACTS Mr. Finch relies upon the Statement of Facts set forth in Appellant's Brief, but adds the following correction to the District Attorney' s recitation of the facts. The District Attorney writes that Detective James Quatrone indicated that Mr. Finch, "did not tell him that he was a licensee of the tenant Calleasha Bradley, nor did Quatrone recall Calleasha Bradley telling him that defendant was on the property as a licensee of Bradley (A 473, 476, 501)" (Respondent's Brief [RB] at 12). 1 More accurately Detective Quatrone only said that he did not recall Mr. Finch telling him at the first arrest on April 28, 2009, that he was licensee (A. 473, 476). Quatrone never denied or claimed not recalling Ms. Bradley telling him that Nature Finch was her guest. Detective Todd Hood, Quatrone's partner who was also present at the first arrest, said Ms. Bradley was screaming at both of them, saying, "You can' t arrest him. He's my guest. Why are you arresting him? He's not trespassing." (A. 378). 2 POINT I: TIDS CASE DOES NOT PRESENT A MIXED QUESTION OF LAW AND FACTS REGARDING THE REASONABLE OR PROBABLE CAUSE TO ARREST. The District Attmney asserts that Mr. Finch' s argument in Point I presents a mixed question of law and fact that is beyond this Court's jurisdiction (RB at 6, 7, 12). That assertion is without merit. First, contrary to the People's belated claim (RB at 12), police knew that Mr. Finch was a licensee of the tenant Calleasha Bradley, as she screamed this at them during the first trespass arrest. Hood, who was Quatrone 's partner and in the same room, specifically admitted hearing this (T. 378). Quatrone could not deny it as he was caught on camera (A. 478), and only denied recalling whether Mr. Finch told him that he was a guest of the tenant (A. 473). Quatrone's knowledge was apparent as Ms. Bradley also complained to his superiors about his conduct (A. 582) and he threatened to have her evicted to get even (A. 599). The County Court, acting as finder of fact (see CPL 470.15) found that police were well aware of Mr. Finch's status as an invitee (A. 12). The People never challenged the license or notice thereof, and never attempted to meet their burden of showing it was invalid (see People v Konikov, 160 AD2d 146, 150-151 [2d Dept 1990]). The People instead simply chose to ignore the defense at trial and County -Court, though it had been raised at the initial arraignment (A. 147-148), 3 and countless times throughout the trial. The People's present claim of lack of knowledge of the license at this stage is both untimely and unsubstantiated. Second, police knowledge of Mr. Finch's licensee status made the trespass charge void ab initio, and none of the facts cited by the People (RB at 8), served to meet their burden of overcoming the license or providing reasonable cause to arrest Mr. Finch for trespass. The County Court found that the police "stay away" order was arbitrary and ineffective (A. 11-13). This was true no matter how many times police repeated it or arrested Mr. Finch on it. Similarly irrelevant were allegations that the area was posted against trespassers, or that the complex was in a supposedly high crime area, as they did not serve to change Mr. Finch's clear legal status as a guest of the tenant. Respondent misapprehends the import of People v Williams (25 NY2d 86 [1969]), which also involved trespassing and resisting arrest. In that case, unlike the one at bar, there was no proof in the record' that the police knew that the New York Governor had given protestors permission to occupy his office, thus police had probable cause to arrest (Williams, 25 NY2d at 90). Here, as the County Court found (A. 12), there was ample proof police that knew of Mr. Finch's licensee status yet chose to ignore it, believing it trumped by their stay away order. 1 While the People here claim there was a question as to whether police knew (RB at 9), this Court made it clear that any assumption that police were aware of the permission was not supported by the record (Williams, 25 NY2d at 90). 4 Police here- absolutely lacked any factual basis to show their arrest was authorized (People v Voliton , 83 NY2d 192, 196 [1994]), as Mr. Finch' s actions clearly did not constitute a crime (People v Jones, 9 NY3d 259 [2007]). Probable cause exists only if facts and circumstances known to the officer would lead a reasonable person possessing the officer's expertise to conclude that it is more probable than not that the suspect has committed or is committing a crime (People v Coulanges, 264 AD2d 853 [2d Dept 1999]). As a matter of law, neither the landlord nor its agents in this case had the authority here to revoke Mr. Finch's license (A. 12). Respondent's repeated contention that it was reasonable for Quatrone to rely upon property manager Nicole Smith's statement that Mr. Finch was not allowed on the property (RB at 10, 12, 13) is tantamount to saying that it was reasonable for Quatrone to be ignorant of the law. Police should have known as part of their "expertise" that the facts were insufficient as a matter of law to sustain the trespass. Mistake of law is generally disfavored by this Court (People v Marrero , 69 NY2d 382 [1987]). There is no "good faith" exception for police who face civil liability if they arrest someone for actions that do not constitute a crime (People v Stephens, 100 Misc2d 267 [Suffolk County Dist Ct 1979]; Bonnau v State, 303 NY 721 [1951]; Baisch v State, 76 Misc2d 1006 [1974]). 5 Absent a legal basis for the charge, the People could not make the minimum showing necessary for probable cause, presenting a question of law for this Court's review (People v Bigelow, 66 NY2d 417, 420 [1985]). In addition, one other correction is in order, as Respondent writes that defendant relies upon Ligon v New York (US Dist Ct, SDNY, 12 Civ 2274, Scheindlin, J., 2013 WL 628534 [Feb. 14, 2013]) in support of the claim that police lacked a reasonable cause to arrest (RB at 14-15). That is a basic mischaracterization of Appellant's argument. Ligon was only cited in the context of public policy to demonstrate the danger in giving police too much discretion (Appellant's Brief at 18-19), as police there routinely stopped and frisked citizens without probable cause, based upon hunches and not clear and established guidelines. The court there ordered not just an injunction but promulgation of written guidelines and police training to effectuate them. In the present case the danger arises from police arresting citizens for facts that do not constitute crimes, and the lower court erring in giving police discretion to find probable cause based upon a mistaken interpretation of the law. POINT II: MR. FINCH'S LICENSE WAS NOT INVALIDATED BY THE FACT THAT HE WAS USING COMMON AREAS OR UNACCOMPANIED BY THE TENANT AT THE TIME OF HIS ARREST. Respondent cites to the fact that Mr. Finch was in common areas and unaccompanied by Ms. Bradley during his trespass arrests (RB at 12-13), thus 6 implying the license could not be valid unless he was in the apartment proper or escorted by the tenant at all times. This argument was not only contrary to the County Court's unreviewable finding that the proof of trespass was legally insufficient (A. 12-13), but also wholly without merit. First, access to the tenant 's apartment requires use of common areas, and landlords may not prevent such entry (Vermont v Dixon, 169 Vt. 15 , 18 [1999]; Bremerton v Widell, 146 Wash2d 561, 571 [2006])). The license usually extends to common areas that are not separately secured or occupied locations within the building (see People v Niepoth , 55 AD2d 970 [3d Dept 1977]). The invitation also carries with it the same rights enjoyed by the tenant to common areas in a multi- dwelling apartment complex to the extent the use of such common areas is connected to the purpose of the invitation (see Restatement of the Law, Torts 2d, § 189; Arbee v Collins, 219 Ga. App. 63, 66 [Georgia Court of Appeals 1995]). Second, trespass is an impingement upon the right to possession (People v Munafo, 50 NY2d 326 [1980]). Only the tenant, as the party in possession, can revoke the privilege of the licensee (100 W. 72nd St. Assocs. v Murphy, 144 Misc2d 1036 [New York County 1989]). Absent a reserved right in the lease, the tenant may grant privilege to whomever she chooses (People v Scott, 26 NY2d 286 [ 1970]), and has the sole right to determine the scope of that privilege. Here there 7 was no showing of any reservation by the landlord. In other words, it was Ms. Bradley who determined the extent of the license. Ms. Bradley made it clear that such license was extensive, as Mr. Finch was not only her guest but the father of her child who helped to babysit and spent many nights at the apartment (A. 634-635). Mr. Finch had Ms. Bradley's express and implied permission to be on the premises during each trespass arrest, whether it was to get the mail (A. 635), take care of their son (A. 643), or return home from a meeting they had both attended (A. 648). Respondent's cited authorities are distinguishable on the law and the facts. In Commonwealth v Hicks (267 Va 573 [2004 ]), no specific license was ever plead or proven, as defendant challenged the no trespass ordinance on general constitutional grounds of free association. In Bremerton (supra) defendant's license was revoked for offensive criminal conduct, but he was still allowed to use the common hallways to visit his girlfriend. Any limitations were justified by safety concerns for other tenants, and defendant's arrest without an excuse blocks from the apartment was found to exceed that limited license (Bremerton, 146 Wash2d at 572). In the present case Mr. Finch was Ms. Bradley's guest and she gave him permission not just to be in her apartment, but also in common areas to get her mail, look after her son outside or on the playground, and to walk home from a 8 meeting that they had both attended. This was her right at common law, and there was no showing that the landlord had reserved or limited it in the lease, nor any showing that police had any legitimate basis to limit that license (see People v Leonard, 62 NY2d 404 [1984]). Further, to the extent that the People never raised this belated claim that Mr. Finch exceeded the license to either the trial or intermediate appellate court, they have failed to preserve it for this Court's review (see People v Hunter, 17 NY2d 725 [201 1]). POINT ill: THE LACK OF PROBABLE CAUSE TO ARREST WAS AN ISSUE PRESERVED FOR TillS COURT'S REVIEW BY DEFENSE COUNSEL'S REPEATED MOTIONS TO DISMISS WHICH GAVE THE TRIAL COURT NOTICE AND OPPORTUNITY TO CORRECT THE ERROR. Respondent implies that lack of probable cause to arrest was not adequately preserved by trial counsel (RB at 6, 13). As noted in pages 19-20 of Appellant's main brief, this claim is without merit. Defense counsel made it clear at arraignment that the trespass was legally precluded by Mr. Finch's license (A. 147- 148). Counsel made written motions to dismiss the trespass and resisting charges, citing Mr. Finch's invitee status (A. 52-53), and highlighted Mr. Finch's guest status as a defense to the charges (A. 574, 635, 699). Counsel's motion to dismiss the resisting arrest charge was sufficient, as she noted that the charge must fall because Detective Quatrone had no good faith basis to believe that Mr. Finch had committed any crime (A. 521, 667). Given the above 9 facts, the trial court was given timely notice of the insufficiency and an opportunity to correct the error, thus satisfying the underlying purpose of CPL 470.05 (2) (see People v Gray, 86 NY2d 10 [1995]). CONCLUSION Wherefore, for the reasons set forth herein and in Point I of Appellant's main brief, Mr. Finch respectfully requests that his Resisting Arrest conviction be reversed and dismissed. Dated: June 27, 2013 10 Respectfully submitted, Philip Rothschild Hiscock Legal Aid Society Attorneys for Appellant 351 South Warren Street Syracuse, NY 13202 (315) 422-8191