The People, Respondent,v.Thomas Barnes, Appellant.

Brief

N.Y.September 16, 2015

To be argued by LAURA BOYD (15 Minutes) Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against- THOMAS BARNES, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT January 8, 2015 SEYMOUR W. JAMES, JR. LAURA BOYD Attorneys for Defendant- Appellant 199 Water Street, 5th Floor New York, N.Y. 10038 Tel: (212) 577-3571 Fax: (646) 616-4571 APL-2014-00179 TABLE OF CONTENTS TABLE OF AUTHORITIES ii INTRODUCT ION . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT POINT I THE INFORMATION IS JURISDICTIONALLY DEFECTIVE BECAUSE IT DOES NOT ESTABLISH, UNDER THE REASONABLE CAUSE OR PRIMA FACIE CASE STANDARDS, THAT APPELLANT KNOWINGLY ENTERED UNLAWFULLY INTO THE COMMON AREAS OF A PUBLIC HOUSING PROJECT (Answering Respondent's brief). CONCLUSION . . .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. i . 2 20 TABLE OF AUTHORITIES CASES Peogle v. Bazan, 30 Misc. 3d 1237(a) (Crim. Ct. N.Y. Co. 2011) . . . . . . . . . . . . . . . 17,18 Peogle v. Burwell, 53 N. Y. 2d 849, 851 (1981) 19 Peogle v. Dreyden, 15 N.Y.3d 100, 104 (2010) 19 Peogle v. Flynn, 79 N.Y.2d 879 (1992) . . . . 19 Peogle v. James, 28 Misc. 3d 345, 350-51 (Crim. Ct. N.Y. Co. 2010) . . . . .. ... ........ 15,18 Peogle v. Tyrell, 22 N.Y.3d 359, 366 (2013) 19 STATUTES McKinney's Cons. Laws of N.Y., Book 1, Statutes §75(a) 7,8 Penal Law §140.00(5) 12 Penal Law §140.10 .. . 4 Penal Law §140.10 (b) (c) (d) 7,10 Penal Law §140.10(e) 4,7,10,15,17,18 Penal Law §140.10(f) 4,7,10 Penal Law §140.10(g) 18 Penal Law §140.15(1) . 4 OTHER AUTHORITY William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law 140.00, p. 18 . . . . . . . . . . . . 13 ii COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- THOMAS BARNES, Defendant-Appellant. INTRODUCTION This reply brief is submitted in response to the People's brief, and is offered in further support of appellant's appeal from an order of the Appellate Term, First Department, entered July 31, 2013, which affirmed a judgment of the Criminal Court, New York County (Mandelbaum, J.), rendered February 16, 2011, convicting appellant, after a plea of guilty, of criminal tres- pass in the second degree [P.L. §140.15(1)] and sentencing him to time served. The relevant facts are set forth in appellant's original brief. With few exceptions, those facts will not be repeated here. Instead, the purpose of this reply is to address certain arguments made, and matters raised, in Respondent's brief. 1 ARGUMENT POINT I THE INFORMATION IS JURISDICTIONALLY DEFECTIVE BECAUSE IT DOES NOT ES- TABLISH, UNDER THE REASONABLE CAUSE OR PRIMA FACIE CASE STANDARDS, THAT APPELLANT KNOWINGLY ENTERED UNLAW- FULLY INTO THE COMMON AREAS OF A PUBLIC HOUSING PROJECT (Answering Respondent's brief). A. Trespass in the Second Degree is Inapplicable to the Public Property at Issue Respondent argues that public housing projects fall within the ambit of the second-degree trespass statute because that statute does not distinguish between public and private dwellings but instead applies to all dwellings, including the "separately secured lobby of a dwelling." See Respondent's Brief, pp. 9-10. This argument focuses on the wrong element of the statute at issue. While all dwellings, whether publicly or privately owned, are treated the same under the second-degree trespass statute for purposes of determining if the aggravating circumstance exists warranting enhancement to an "A" misdemeanor, this does not address the question of whether appellant's entry into the lobby of the public housing project was unlawful and that appellant knew that was the case. As argued in appellant's main brief, the public nature of a public housing project does affect whether a member of the public unlawfully enter such property because, unless a person's license and privilege to enter a public prop- 2 erty is appropriately extinguished, entry is not unlawful. See Appellant's Brief, pp. 12-15. Respondent also argues that, "because a public housing project is 'public property' does not mean that the lobby or other common areas are 'open to the public' at large." See Respondent's Brief, p. 10. Specifically, respondent argues that the term "public property" can be used to refer to "the manner in which the property is used or the character of its ownership" and not all such property possess both of these attributes. With respect to public housing projects, respondent recognizes that such property is public property since it is government owned but argues that its use is "inconsistent with unrestricted public access" and that residents of public housing deserve to be protected in the common areas "against intruders with no legiti- mate reason for being in the building's common areas." See Respondent's Brief, pp. 10-11. In making this argument, respondent mischaracterizes appel- lant's argument as asserting that all public property, in partic- ular a public housing project, is necessarily open to the public without regard to its character or function. See Respondent's Brief, pp. 10, 15. In actuality, what appellant has argued is that, although a public housing project is public property, this particular public property is not open to the public at large. This is because the Legislature has added provisions to the 3 third-degree trespass statute that serve to eliminate a person's license and privilege to enter this particular public property when appropriate notice is given either through conspicuously posted rules or regulations governing entry or a direct order to leave. Of course, public policy mandates that people living in public housing projects should be protected from intruders. See Respondent's Brief, pp. 10-11, 16-17, 23-24, 34. That is why the Legislature amended the third-degree trespass statute to specifi- cally protect residents of public housing. There is, however, an equally crucial public policy at issue here, namely, that members of the public be given adequate notice that their conduct is unlawful before being held liable for trespass. Indeed, adequate notice is the cornerstone of the trespass statutes at issue here as evinced by the requirement that the defendant "knowingly" enter unlawfully. P.L. §140.10; P.L. §140.15(1). The importance of giving adequate notice to the public is confirmed by the Legislature's having included in the third-degree trespass statute the requirement that the person's entry be "in violation of conspicuously posted rules or regulations governing entry and use thereof . . . [or] in violation of a personally communicated request to leave the premises. . . "P.L. §140.10(e) (f). Here, the crux of appellant's argument is that, since the Legislature did not amend the second-degree trespass statute but 4 instead made the determination that entry into the cornmon areas of a public housing project should be penalized as third-degree criminal trespass, the second-degree criminal trespass statute remains inapplicable to public housing projects. If, as respon- dent urges, the Legislature's action in 1992 no longer provides sufficient punishment today, the Legislature is certainly at liberty to amend the second-degree criminal trespass statute. See Respondent's Brief, p. 24. Respondent argues that, ~[allthough the legislative history further suggests that at least some legislators erroneously believed that" the existing trespass laws did not protect resi- dents of public housing projects, this mistaken belief did not limit the scope of the then existing second-degree trespass statute. Respondent's Brief, pp. 16-17. As respondent notes, however, the Senate sponsor of the bill wrote to the Governor's counsel explaining that the bill was necessary to protect the residents of public housing projects because, under the laws that existed in 1992, they had no protection against trespassers. Respondent's Brief, p. 17. Respondent, however, argues that there is no authority to support the Legislature's view that public housing project residents were unprotected, citing lower court cases that found liability for trespass in public housing projects prior to 1992. Respondent's Brief, pp. 17-18. 5 The cases respondent cites are either wrongly decided or the argument that public housing projects are public property and thus not subject to liability for trespass was not raised before those courts. The distinction between the license and privilege to be on public property versus private property has long ex- isted. See Appellant's Brief, pp. 12-13. The Legislative's enactment of the provisions applicable to public housing projects was not, as respondent urges, a situation where the Legislature made "a retroactive legal determination regarding the scope and meaning of the second-degree statute." Respondent's Brief, p. 19. The Legislature did not change the plain meaning of the second-degree trespass statute. Instead, taking into account the Legislature's understanding of the intent underlying the statu- tory framework of the trespass statutes it enacted, the Legisla- ture addressed the well established problem in applying trespass laws to public property -- a public housing project -- where the public's entry is not unlawful because the public is licensed and privileged to enter. In doing so, the Legislature remedied the lack of culpabil- ity for trespass in the common areas of a public housing project in the same manner that it had previously rectified the lack of culpability for trespassing on other public properties, such as schools, by including language in the third-degree trespass statute that defined the public's license to be on such property. 6 Compare P.L. §140.10(b) (c) (d) with P.L. §140.10(e) (f). Indeed, before the 1992 amendment to the third-degree trespass statute, the Legislature had eliminated the same problem with respect to public property utilized as a school property. P.L. §140.10(b) (c) (d). Hence, the 1992 amendment to the third-degree trespass statute did not "'fix[]' a problem that never existed." Respondent's Brief, pp. 19-20. Instead, it provided protection for resident's of public housing projects that was akin to the protection provided for other public properties worthy of limit- ing access. While it is true, as respondent notes, that "the power to construe statues is vested in the courts and not in the Legisla- ture" (McKinney's Cons. Laws of N.Y., Book 1, Statutes §75(a)) (~, Respondent's Brief, p. 19), it is equally true that [t]he Legislature may likewise declare by statute the true meaning of a previous statute, and while such a declaration will have no controlling effect in causes which had already arisen, it will lay down a new rule of construction for the future. So, where the Legisla- ture has passed a statute indicat- ing what its intent and purpose had been in passing a statute at a previous session, although such new law may not control interpretations of the law passed at the previous session, it is entitled to great weight and respect of the courts as 7 a legislative construction of am- biguous phraseology. Id. Applying these principal to the present case, the Legisla- ture's recognition that the trespass laws existing in 1992 did not apply to public property and its subsequent enactment of provisions to fill this void "is entitled to great weight and respect." Id. Ironically, respondent notes that, in 1992, when the Legis- lature was seeking to create criminal liability for trespass in public housing projects, The Legal Aid Society specifically advised the Legislature that such action was unnecessary because the existing second-degree trespass statute was applicable to such property. See Respondent's Brief, p. 21. The Legislature obviously rejected this view as it ultimately enacted liability under the third-degree trespass statute. contrary to respondent's assertions, the third-degree trespass statute is the only vehicle for prosecution of trespass in the common areas of public housing projects because none of the other trespass statutes contain language that defines the public's license and privilege to be on that specified public property. See Respondent's Brief, pp. 21-23. If the second- degree trespass statute is applicable even absent such language, then the third-degree trespass statute as it existed in 1992 also would have been applicable to the non-dwelling buildings of a public housing project and there would be no need, as respondent 8 asserts, for the Legislature to "insure that, if trespassing in public housing projects was outside the purview of existing law, it would be covered by at least the third-degree statute." Respondent's Brief, p. 22. Indeed, if respondent's view is adopted, this would have the peculiar result of providing the public with notice that entry is unlawful when convicted of the lesser third-degree trespass crime but require no notice of unlawful conduct be provided to the public before they can be convicted of the more severe second- degree trespass crime. Certainly, this result that would contra- vene public policy. See Respondent's brief, p. 24. According to respondent, various circumstances -- the presence of a "No Trepassing" sign, a locked entrance door, a buzzer system or vestibule, the configuration of the building or lobby, or that the building is set back from the street - may convey that a public housing project is not open to the public. See Respondent's Brief, pp. 11-12. While the particular circum- stances of an individual building may provide indications that a location is not open to the public, this is not sufficient to extinguish the public's license and privilege to enter the common areas of a public housing project. In rectifying the lack of culpability for entering such location, the Legislature deter- mined more was required. 9 Specifically, the Legislature required that the entry be "in violation of conspicuously posted rules or regulations governing entry and use thereofH [P.L. §l40.l0(e)] or a direct order from a housing police officer or other authorized person [P.L. §l40.l0(f)]. Requiring this level of notice to the public before their entry can be deemed unlawful makes sense since it provides a consistent and sufficient level of notice rather than leaving the determination of whether the public is licensed to enter to an ad hoc determination based on the various factors -- such as whether a particular door is locked or left open on a particular day -- that mayor may not be present in a individual case. Indeed, this approach is consistent with the approach the Legis- lature has taken with respect to trespass laws applicable to other public property. P.L. §140.10(b) (c) (d)] (applying similar language to schools). Nor, as respondent suggests, does the lawfulness of the public's entry onto a public property turn on whether the public property "may reasonably be expected to attract a large swath of the public,H such as a pub on a publicly-owned college campus, a public library, or an Internal Revenue Service office. See Respondent's Brief, pp. 12-14. In essence, respondent seeks to create a new category of public property applicable to only public housing projects, where the public's license to enter is 10 extinguished simply because the property is not frequented by a large portion of the public. In creating this unique public property category, respondent seeks to categorically eliminate the public's license and privi- lege to enter the common areas of such property even though the property is publically owned and seemingly open to the public. At the same time, respondent relies on the public ownership of the property to allege that appellant "did not have permission or authority to be inside the dwelling." The "source" of this allegation is that the officer who arrested appellant "is a member of the New York Police Department and as such is an agent of this dwelling and defendant did not have permission or author- ity to enter or remain in the area in which he was found." (A. 4- 5; Information). Hence, respondent seeks to have the common areas of a public housing project treated akin to private prop- erty where the public's rights are concerned but have it treated as public property with respect to enforcement by having a police officer be treated as an agent of the public property. The Court should not endorse this double standard. B. The Information Does Not Provide a Factual Allegations that Show that the Lobby Was Not Open to the Public In response to appellant's argument that the factual allega- tions in the information were insufficient to establish that the lobby appellant entered was not open to the public, respondent argues that the "allegations sufficed to establish that, when 11 defendant entered the lobby and passed beyond the 'No Trespass- ing' sign, he knew his presence was unlawful." See Respondent's brief, p. 25. To support this assertion, respondent relies on the fact that appellant did not live in the building and could not provide the name of a resident whom he was visiting, which showed that he had no legitimate purpose for being there. See Respondent's brief, p. 26. Whether or not appellant had a legitimate purpose for being there -- be it looking for a commercial establishment or just trying to get out of the cold on a February night -- provides no information to appellant as to whether the unlocked building was not open to the public." Moreover, that "defendant's presence in the lobby was unrelated to the building's essential character as a residence" does not establish that appellant had reason to know that the building was exclusively residential and that its common areas were not open to the public. See Respondent's brief, p. 27. In the same vein, being present in an unlocked lobby past a vestibule (which can serve to keep out the elements) does not convey that the building is exclusively residential or that it 1 Indeed, appellant's intent in entering the building is irrelevant since "[a] person who, regardless of his intent, 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." P.L. §140.00(5). 12 was not open to the public. See Respondent's brief, pp. 27, 28. To the contrary, that there was no lock or barrier to entry would serve to indicate that the opposite was true. See William C. Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law 140.00, p. 18 ("legislative intent in the new [third-degree trespass] provisions would have been aided by an additional amendment to the definition of the term 'enter or remain unlawfully' [Penal Law §140.00(5)] indicating in effect that a person who enters or remains in a public housing building (except an open lobby area) who is not an employee, resident, an invitee of a resident or visiting a resident, and does not otherwise have a legitimate business or other reason for entering or remaining, does so without license or privilege."). While respondent urges that "'[t]he reasonable expectations of the residents of NYCHA buildings to privacy and security as protected by laws against criminal trespass cannot depend on whether the building's security system happens to be in good working order on any particular day,'ff this argument misses the mark. See Respon- dent's brief, pp. 28-29 (citation omitted). In determining whether a member of the public knew that a property is not open to the public, the expectations of the residents is not relevant. Instead, the circumstances of the building, including whether or not is locked, impact whether the public knew that it was not open to the public. 13 Respondent places great reliance on the allegation in the information that appellant was in the lobby "beyond" a posted "No Trespassing" sign. According to respondent, "[t]he plain import of such a sign was that access to the lobby was restricted to building residents, their guests or other invitees. At a mini- mum, the posted 'No Trespassing' sign conveyed that a person without a legitimate reason to be in the lobby had no license or privilege to be there." See Respondent's brief, pp. 27-28. Respondent is dismissive of the fact that the information does not relate where the sign was posted or if it was visible to people entering the lobby, noting that the "conspicuously posted" language is contained in the third-degree and not the second- degree trespass statute. See Respondent's brief, p. 29. While respondent asserts that the posted sign tends to support that appellant knew the lobby was nonpublic, without any information indicating where the sign was posted or if it was visible to members of the public who entered the lobby, there is no basis to "infer" that the sign was visible and then infer that appellant saw it and knew his entry was unlawful. Thus, the allegation in the information that there was a sign does not provide a factual basis for concluding that appellant knew the premises was not open to the public and thus his presence was unlawful. The lack of information as to where the sign was is not merely a defense to be raised at trial, as respondent as- 14 serts. See Respondent's brief, pp. 29-30. Rather, it is a crucial piece of information relevant to whether the information provides an adequate factual basis to establish a prima facie case that appellant knowingly entered unlawfully. People v. James, 28 Misc. 3d 345, 350-51 (Crim. Ct. N.Y. Co. 2010) ("The mere posting of a 'no trespassing' sign is not enough to estab- lish that the lobby of the premises is not open to the public, where 'the information does not indicate that the signs are posted strategically or conspicuously enough to afford adequate notice of the prohibited conduct.' (Outlar at 625; accord People v Payton, NYLJ, Feb. 25, 1998, at 30, col 2 [Crim Ct, NY County Billings, J.J"). Indeed, that the Legislature specifically included in its amendment of the third-degree trespass statute the requirement that there be conspicuously posted rules and regulations, and not merely a "No Trespassing" sign, indicates how critical it is that the public be given adequate notice of who and what conduct is prohibited when it comes to an ostensibly public space. A "No Trespassing" sign does not provide this information and, while respondent argues that requiring more would be "an 'unacceptably hypertechnical interpretation of the pleading requirement'" (see Respondent's Brief, p. 31), the Legislature disagrees as evinced by its inclusion of this requirement in P.L. §l40.10(e). 15 Instead of providing factual allegations in the information upon which a court could find that appellant was put on notice that his entry was unlawful, respondent seeks to make up for this jurisdictional deficiency by relying on "common experience" to inform members of the public that a location is not open to the public. See Respondent's brief, pp. 27, 29. Notably, "common experience" would lead one to believe that an unlocked entrance indicates that the lobby -- particularly the lobby of a "public" building -- is open to the public. Moreover, since "common experience" can vary significantly from person to person and, in particularly, between city and non-city dwellers, it is not a substitute for a lack of factual allegations establishing that members of the public had notice that the lobby in question was not open to the public. C. The Appropriate Remedy is Dismissal of the Information Respondent argues that, even if the information is facially insufficient with respect to the second-degree trespass count, it should not be dismissed because it also included a charge of third-degree criminal trespass. Respondent argues that the allegation in the information that appellant was "in the lobby of a NYCHA apartment building, 'beyond a posted sign which read, "No Trespassing"'" was facially sufficient to allege a violation of criminal trespass in the third degree because these allegations "conveyed that the sign was visible to any reasonably attentive 16 person who entered the lobby--which at the pleading was enough to show that the sign was 'conspicuous'" and "the sign sufficiently gave notice that entry was restricted to those with a legitimate reason to be there." See Respondent's Brief, pp. 33-34. Hence, respondent asserts that the proper remedy is to vacate appel- lant's plea and remand the case for further proceeding with respect to the third-degree trespass count. See Respondent's Brief, pp. 32-35. Appellant maintains the factual allegations in the informa- tion do not establish reasonable cause to believe and a prima facie case that appellant committed the criminal trespass in the third degree. See Appellant's Brief, p. 8, n.3. Specifically, the allegation that appellant was beyond a "No Trespassing" sign, posted at an unspecified location, does not make out a prima facie case that appellant committed third-degree trespass because it fails to provide a factual basis to establish the element that appellant entered to lobby "in violation of conspicuously posted rules or regulations governing entry and use thereof." P.L. §l40.l0(e). A "No Trespassing" sign is not equivalent to "rules or regulations governing entry." See People v. Bazan, 30 Misc. 3d 1237(a) (Crim. Ct. N.Y. Co. 2011) (third-degree trespass charge dismissed because "accusatory instrument is devoid of any factual allegations indicating that rules and regulations governing entry and use of the NYCHA building were conspicuously posted"). If it 17 were, the Legislature would have specifically state so, as it did where railroad property is concerned, which proscribes entry onto property "designated and conspicuously posted as a no-trespassing railroad zone." P.L. §140.10(g). Even if a "No Trespassing" sign were equivalent to "rules and regulations governing entry," since the information did not specify the location of the sign, there is no factual basis to establish that it was conspicuously posted so that it would be visible to a person entering the lobby in the manner in which appellant had done so. People v. Bazan, supra; People v. James, supra, 28 Misc.3d at 351. Notably, if, as respondent argues, the information is deemed sufficient even though it does not allege that the "rules or regulations governing entry" were posted and does not provide the location of such posting so it can be determined if it was conspicuously posted, this would essentially render the Legislature's inclusion of the requirement that the entry be "in violation of conspicuously posted rules or regula- tions" superfluous. This, in turn, would remove from the third- degree criminal trespass statute [P.L. §140.10(e)] the crucial provision added by the Legislature in 1992 that defines the public's license and privilege to enter the commons areas of a public housing project. The net result would be that the third- degree criminal trespass statute in question would essentially revert back to how it existed in 1992, prior to the Legislature's 18 amendment, and it would no longer serve to extinguish the pub- lic's license and privilege to enter the public property utilized as a public housing project. Finally, even if the information had sufficiently alleged third-degree criminal trespass, since appellant has completed his sentence and a minor offense is involved, this Court should vacate the guilty plea and, instead of remanding for further proceedings, this Court should dismiss the information in the interest of justice. The Court has not hesitated to dismiss charges in the interest of justice in cases such as this one, where the proceedings were flawed, the defendant has completed his sentence, and a minor offense was involved. People v. Tyrell, 22 N.Y.3d 359, 366 (2013); People v. Dreyden, 15 N.Y.3d 100, 104 (2010); People v. Flynn, 79 N.Y.2d 879 (1992); People v. Burwell, 53 N.Y.2d 849, 851 (1981). Accordingly, the judgment should be reversed and the information dismissed. In sum, the case law and the relevant statutes warrant vacatur of appellant's plea and dismissal of the information. Accordingly, this Court should direct that the order of the Appellate Term, insofar as appealed from, should be reversed, the plea vacated and the information dismissed. 19 January 8, 2015 CONCLUSION FOR THE REASONS STATED IN THE ORIG- INAL BRIEF, AS SUPPORTED HEREIN, APPELLANT'S PLEA SHOULD VACATED AND THE INFORMATION DISMISSED. Respectfully submitted, SEYMOUR W. JAMES, JR. LAURA BOYD, ESQ. Attorneys for Defendant-Appellant 20