The People, Respondent,v.Anthony Barksdale, Appellant.BriefN.Y.September 8, 2015APL-2014-00180 To be argued by SHEILA L. BAUTISTA (15 Minutes Requested) COVER Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - ANTHONY BARKSDALE, Defendant-Appellant. B R I E F F O R R E S P O N D E N T CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 danyappeals@dany.nyc.gov BETH FISCH COHEN SHEILA L. BAUTISTA ASSISTANT DISTRICT ATTORNEYS Of Counsel NOVEMBER 13, 2014 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................................................................. ii Preliminary Statement ............................................................................................................ 1 Introduction ................................................................................................................. 2 Question Presented ................................................................................................................ 4 The Suppression Hearing ...................................................................................................... 4 The People’s Case ....................................................................................................... 4 The Defendant’s Case ................................................................................................ 6 The Parties’ Arguments .............................................................................................. 7 The Court’s Decision.................................................................................................. 8 The Appellate Division’s Decision ........................................................................... 9 POINT The record contains ample support for the Appellate Division’s finding that police officers patrolling a trespass affidavit building for intruders had an objective credible reason to ask defendant whether he lived in the building. Because the decision involved a mixed question of law and fact, the Appellate Division’s determination is outside the scope of this Court’s review. ........................................................................ 10 CONCLUSION ................................................................................................................... 24 TABLE OF AUTHORITIES FEDERAL CASES Davis v. City of New York, 902 F.Supp.2d 405 (S.D.N.Y. 2012) ............................. 20-22 Ligon v. City of New York, 925 F.Supp.2d 478 (S.D.N.Y. 2013) ...................... 14, 17-18 STATE CASES Ganley v. Guiliani, 94 N.Y.2d 207 (1999) ......................................................................... 14 Matter of Michael F., 84 A.D.3d 468 (1st Dept. 2011) .................................................... 19 Nickels v. New York City Housing Authority, 208 A.D.2d 203 (1st Dept.), aff’d 85 N.Y.2d 917 (1995) ............................................................................... 14 People v. Abad, 279 A.D.2d 358 (1st Dept. 2001) ....................................................... 9, 16 People v. Anderson, 306 A.D.2d 54 (1st Dept. 2003) ......................................... 15, 18, 21 People v. Barksdale, 110 A.D.3d 498 (1st Dept. 2013) ......................... 3, 9-11, 20, 22-23 People v. Centano, 76 N.Y.2d 837 (1990) ......................................................................... 11 People v. Damiano, 87 N.Y.2d 477 (1996) ....................................................................... 11 People v. De Bour, 40 N.Y.2d 210 (1976) ...................................................... 12-13, 15, 22 People v. Francois, 14 N.Y.3d 732 (2010) ......................................................................... 11 People v. Garcia, 20 N.Y.3d 317 (2012) ............................................................................ 13 People v. Harrison, 57 N.Y.2d 470 (1982) ........................................................................ 11 People v. Hendricks, 43 A.D.3d 361 (1st Dept. 2007) ................................. 15, 18, 21, 23 People v. Hollman, 79 N.Y.2d 181 (1992) .................................................................. 13, 17 People v. Howard, 147 A.D.2d 177 (1st Dept. 1989) ...................................................... 20 People v. Johnson, 109 A.D.3d 449 (1st Dept.), appeal dismissed (23 N.Y.3d 1001) (2014) ...................................................................................... 11-12, 20-21 People v. Lightfoot, 22 A.D.3d 865 (2d Dept. 2005) .......................................... 15, 18, 21 -ii- People v. Martin, 19 N.Y.3d 914 (2012) ............................................................................ 11 People v. McIntosh, 96 N.Y.2d 521 (2001) ................................................................ 11, 19 People v. McRay, 51 N.Y.2d 594 (1980) ........................................................................... 11 People v. Moore, 6 N.Y.3d 496 (2006) .............................................................................. 13 People v. Roque, 99 N.Y.2d 50 (2002) ........................................................................ 14, 17 People v. Tinort, 272 A.D.2d 206 (1st Dept. 2000) ............................. 9, 15, 18, 20-21, 23 People v. Wannamaker, 93 A.D.3d 426 (1st Dept. 2012) ............................................... 14 People v. Wheeler, 2 N.Y.3d 370 (2004) ...................................................................... 11-12 People v. Williams, 16 A.D.3d 151 (1st Dept. 2005) ....................................................... 14 STATE STATUTES Penal Law § 140.10(a) .......................................................................................................... 17 Penal Law § 265.02(1) ......................................................................................................... 1-2 -iii- COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- ANTHONY BARKSDALE, Defendant-Appellant. BRIEF FOR RESPONDENT Preliminary Statement By permission of the Honorable Susan Phillips Read, Associate Judge of the Court of Appeals, defendant Anthony Barksdale appeals from an October 15, 2013 order of the Appellate Division, First Department. That order affirmed an October 27, 2010 judgment in the Supreme Court, New York County (Analisa Torres, J., at suppression hearing; Richard D. Carruthers, J., at plea and sentencing), convicting defendant, upon his plea of guilty, of three counts of Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02[1]). By that judgment, defendant was sentenced, as a second felony offender, to concurrent, indeterminate terms of from two to four years in prison. Defendant has completed that sentence and is currently at liberty. Introduction On the night of April 21, 2009, two police officers went to an apartment building in Manhattan as part of their routine patrol. The building, which was in a high-crime neighborhood and had no security personnel, had been plagued with so much criminal activity that the landlord had enrolled it in the trespass affidavit program (TAP) so that police officers would conduct vertical patrols to keep trespassers away. The entrance to the building had a lock, a buzzer system to prevent people from entering without authorization, and a “no trespassing” sign that warned violators of arrest. When the officers checked the building that night, they encountered defendant standing in the lobby and asked him if he lived there. Defendant replied that he did not and claimed he was visiting someone in the building. The officers asked defendant to provide either the name of the person or the apartment number he was visiting. When defendant was unable to do so, the officers placed him under arrest. They searched him and found a razor blade in the pocket of his pants. By New York County Indictment Number 4912/2009, dated September 14, 2009, defendant was charged with three counts of Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02[1]).1 On September 13, 2010, the Honorable Analisa Torres conducted a Mapp/Huntley hearing on defendant’s motion 1 The indictment included charges stemming from his subsequent arrest for possession of a gravity knife on May 28, 2009. -2- to suppress the razor blade and his statement related to it. In a written decision dated September 20, 2010, Justice Torres denied the Mapp portion of his motion and granted the Huntley portion of his motion. On September 30, 2010, defendant proceeded to trial before the Honorable Richard D. Carruthers. On October 1, 2010, just before jury selection, defendant pleaded guilty to all three counts. On October 27, 2010, Justice Carruthers sentenced defendant as noted above. On direct appeal to the Appellate Division, First Department, defendant argued that the police officers who encountered him in the lobby of a trespass affidavit program building lacked an objective credible reason to ask him whether he lived in the building. On October 15, 2013, the Appellate Division rejected defendant’s argument and unanimously affirmed the suppression court’s decision. People v. Barksdale, 110 A.D.3d 498 (1st Dept. 2013). The court found that the police officers were entitled to make a simple, level-one inquiry of defendant based upon the fact that the building had been: so prone to trespassing that the landlord had ‘request[ed] police assistance in removing intruders.’ Furthermore, the officer’s simple inquiry as to whether defendant lived there was the type of minimally intrusive question that a building employee might ask. Barksdale, 110 A.D.3d at 499 (internal citations omitted). -3- On appeal to this Court, defendant renews his claim that his mere presence in the lobby of a TAP building did not authorize the police officers to ask him whether he lived in the building.2 Question Presented When police officers were patrolling a building in the trespass affidavit program in response to the building’s request for police assistance in removing trespassers, were they authorized to ask defendant whether he lived in the building when they saw him in the lobby? The Appellate Division found that the officers had an “objective credible reason” to pose “the type of minimally intrusive question that a building employee might ask.” The Suppression Hearing The People’s Case On April 21, 2009, uniformed Police Officer CARLOS NIEVES was on patrol in the area of 129th Street and Lenox Avenue in Manhattan (Nieves: A5, A9).3 Officer Nieves was a member of the local “Impact Post,” an assignment where officers who were recent graduates from the police academy were “placed into high- crime areas to deter crime as well as to address quality of life offenses and other 2 Before this Court, defendant is appealing just one of his weapons-possession convictions in the indictment. Accordingly, this brief will summarize only the portion of the suppression proceedings relevant here. 3 Parenthentical references are to the appendix of defendant’s brief. -4- crime” (Nieves: A10-A11). Around 7:00 p.m. that night, Nieves and his partner Officer Morales were on 129th Street when they decided to do a vertical patrol of a building in the Trespass Affidavit Program (TAP) (Nieves: A11). To enroll in TAP, building management requests that police officers “patrol the building and arrest trespassers within the building” (Nieves: A11-A12, A28). Generally, signs posted “outside of the building” and also “right in the lobby as you come into the building” announce a building’s participation in TAP “and that trespassers are subject to arrest” (Nieves: A12-A13). Officers Nieves and Morales entered an apartment building in this “high-crime area”; Nieves “believe[d]” he had seen a TAP sign posted either “inside the lobby or in the front of the building” (Nieves: A10, A19-A20).4 There were no security guards at the building (Nieves: A26). The door to the building “ha[d] a lock on it,” and there was a buzzer system at the entrance (Nieves: A25). Nieves could not recall how he entered the building. He did not remember if the front entrance was locked, or if someone had buzzed him into the building (Nieves: A15, A25).5 4 TAP participants include New York City Housing Authority buildings and privately- owned residences (Nieves: A28). Nieves did not know if the property was a NYCHA building (Nieves: A26). 5 The prosecutor assigned to this case later confirmed to Nieves that the building was in the affidavit program (Nieves: A20). When asked specifically about the affidavit that building management had submitted, Nieves “first learned about the affidavit” when he spoke with the prosecutor. Nieves could not recall if he had ever seen the affidavit and did not know who had signed it (Nieves: A21). -5- Once in the building, the officers saw defendant “just standing” in the lobby (Nieves: A13, A25). The officers “asked him if he resided in the building,” and defendant said, “No” (Nieves: A14). The officers then asked him “what he was doing in the building,” and defendant responded that “he was visiting a friend” (Nieves: A13, A24). But defendant “couldn’t provide the apartment” number, nor did he request that the officers escort him to anyone’s apartment (Nieves: A19). When asked, defendant “couldn’t provide his friend’s name” or identify the person he was purportedly visiting; a few minutes had elapsed from the time the officers had first entered the building (Nieves: A14). The officers placed defendant under arrest (Nieves: A14).6 Morales searched defendant and recovered a razor blade from his left pants pocket (Nieves: A14). When the officers asked him why he had it, he responded that he “use[d] it for his feet” (Nieves: A18). The Defendant’s Case Defendant presented no evidence at the hearing. 6 The officers also spoke with another man who was in the lobby. They did not place him under arrest (Nieves: A23). -6- The Parties’ Arguments Defense counsel moved to suppress the razor blade recovered from defendant.7 Counsel contended that Nieves lacked “probable cause” or a “constitutional basis” for the stop, arrest and inquiry of defendant based on his presence in the lobby of the building (SH: A29-A30). Although counsel recognized that police officers have the “right” to “make an initial inquiry,” he stressed that Officer Nieves could not recall the exact location of the building’s “no trespass sign” and did not know whether “there was even an affidavit in existence before he made the arrest” (SH: A30). Counsel also pointed out that the officer could not remember how he entered the building (SH: A30). Accordingly, counsel concluded that there was no probable cause for Nieves to have stopped defendant and “inquire whether or not he was trespassing just by virtue of the fact that he was in the building” (SH: A30). Without remembering how he entered the building, the officer had “no basis” to assume that he had a right to stop, question, and search defendant “simply” because he saw him in the building lobby (SH : A30). The prosecutor asked the court to credit the testimony of Officer Nieves, who believed, based on his “prior training” and the “no trespassing” sign on the building, that he was patrolling a TAP building (SH: A33). The People argued that the building’s enrollment in TAP and its “no trespassing” signs gave the officers a lawful 7 Parenthetical references beginning with “SH” are to the minutes of the suppression hearing. -7- basis to make their “initial inquiry” of defendant to determine “whether or not he was someone who was trespassing inside of the building” (SH: A34). The prosecutor further argued that defendant was properly placed under the arrest when he denied living in the building, claimed to be visiting a resident, but “was unable to tell the officers either a floor or the name of the individual” he was purportedly visiting (SH: A35). The Court’s Decision In a written decision dated September 20, 2010, Justice Torres rejected defendant’s challenge to the lawfulness of the police approach and denied his motion to suppress the razor blade. Ruling that Officer Nieves had testified credibly, the judge found that on the night of April 21, 2009, the officers were conducting a patrol of a building that was “part of the ‘trespass affidavit’ program, an arrangement whereby the police are invited to patrol apartment houses in order to deter trespassing” (Decision: A44-A45). She further noted that “Nieves observed defendant standing in the lobby where a no trespassing sign is posted” (Decision: A45). The court found that defendant denied being a resident in the building, and although he claimed to be “visiting someone,” he “failed to disclose whom he was visiting” and was placed under arrest (Decision: A45). The subsequent search yielded a razor blade from defendant’s left pants pocket (Decision: A45). The razor blade was recovered pursuant to the lawful arrest (Decision: A47). -8- Relying on People v. Abad, 279 A.D.2d 358, 359 (1st Dept. 2001), and People v. Tinort, 272 A.D.2d 206, 206-07 (1st Dept. 2000), Justice Torres ruled that “because the building is part of the trespass affidavit program, Officer Nieves had an objective credible reason to ask defendant why he was there” (Decision: A47). She concluded that once defendant “claimed to be visiting someone in the building, but did not give Nieves a name or apartment number, Nieves had probable cause to arrest defendant for trespass” (Decision: A47). The Appellate Division’s Decision The Appellate Division unanimously affirmed the lower court’s order. Barksdale, 110 A.D.3d at 498-99. The court found that the officer who was conducting a vertical patrol saw defendant standing in the lobby of a trespass affidavit building. This observation provided an “‘objective credible reason’ to ask defendant whether he lived there,” which constituted a level-one request for information. Barksdale, 110 A.D.3d at 498. The court found that this “inquiry was not based merely on the reputation of the area, but also on the fact that the building was so prone to trespassing that the landlord ‘had request[ed] police assistance in removing intruders.’” Id., citing Tinort, 272 A.D.2d at 206. The court characterized “the officer’s simple inquiry as to whether defendant lived there” as “the type of minimally intrusive question that a building employee might ask.” Barksdale, 110 A.D.3d at 499. The court also ruled that the record sufficiently established that defendant was in a -9- “plainly nonpublic lobby of a posted trespass affidavit building, and that the officer was aware of this at the time he made his inquiry.” Id. The court concluded that, based on defendant’s admission that he did not live in the building, and on his inability to provide the name or apartment number of a friend he claimed to be visiting, the officer had probable cause to arrest him for criminal trespass. Id. POINT The record contains ample support for the Appellate Division’s finding that police officers patrolling a trespass affidavit building for intruders had an objective credible reason to ask defendant whether he lived in the building. Because the decision involved a mixed question of law and fact, the Appellate Division’s determination is outside the scope of this Court’s review (Answering Defendant’s Brief). On appeal, defendant claims that, when police officers conducting a vertical patrol observed him in the building’s lobby, they lacked an objective credible reason to ask him whether he lived in the building. He insists that a police inquiry conducted in a restricted apartment building is no different than one that occurs on the street or aboard a commercial passenger bus (Defendant’s Brief at 4-5, 14-16). Defendant is wrong. Here, the police found defendant in a common area of an apartment building, a location where presence can legitimately be restricted to tenants and invited guests. In addition, the building’s enrollment in the trespass affidavit program demonstrated its history of drug-related activity and other illicit conduct and signified that the building management had requested that the police patrol for trespassers. Further, -10- defendant’s “mere presence” in the trespass affidavit building as a non-resident or unauthorized stranger constituted the crime of trespass, the very crime the officers had been asked to prevent. These factors gave the police officers more than enough reason to pose the type of “minimally intrusive question that a building employee might ask” to ascertain whether defendant lived in the building. Barksdale, 110 A.D.3d at 499. Contrary to defendant’s assertion (Defendant’s Brief at 6, n. 3), this case is beyond this Court’s review because the Appellate Division’s determination that the officers acted reasonably is a mixed question of law and fact that, as demonstrated infra, is supported by the record. People v. Martin, 19 N.Y.3d 914, 915 (2012); People v. Francois, 14 N.Y.3d 732, 733 (2010); People v. McIntosh, 96 N.Y.2d 521 (2001). Thus, “unless there is no view of the evidence that would support that determination,” this Court is “bound by the suppression court’s finding.” People v. Wheeler, 2 N.Y.3d 370, 373 (2004), citing People v. Damiano, 87 N.Y.2d 477, 489 (1996). “[W]here reasonable minds may differ as to the inference to be drawn from the established facts, this [C]ourt, absent an error of law, will not disturb the findings of the Appellate Division and the suppression court.” People v. McRay, 51 N.Y.2d 594, 601 (1980); People v. Harrison, 57 N.Y.2d 470, 479 (1982); see also People v. Centano, 76 N.Y.2d 837, 838 (1990). Indeed, this Court’s dismissal of the appeal in People v. Johnson, 109 A.D.3d 449 (1st Dept. 2013), the case that defendant claims should govern the outcome here, -11- (Defendant’s Brief at 21), demonstrates the unreviewability of this case. Johnson presented the same issue as this case: whether officers in a public housing building had an objective credible reason to ask the defendant if he lived there. This Court dismissed the appeal in Johnson because the Appellate Division’s decision “was not ‘on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal.’” People v. Johnson, 23 N.Y.3d 1001 (2014). Because this case presents the identical issue that was raised in Johnson, and there exists record support for the Appellate Division’s decision here, this question of mixed law and fact is beyond this Court’s further review. Indeed, as will be shown, the evidence in the record fully supports the Appellate Division’s opinion affirming the suppression court’s ruling. The touchstone of any analysis of a police-citizen encounter is whether the police officer acted reasonably. Wheeler, 2 N.Y.3d at 374. As this Court recognizes, “the practical necessities of law enforcement and the obvious fact that any person in our society may approach any other person and attempt to strike up a conversation, make it clear that the police have the authority to approach civilians. While the extent of this power may defy precise definition it would be unrealistic to say it does not exist at all.” People v. De Bour, 40 N.Y.2d 210, 219 (1976). Indeed, “unrealistic restrictions on the authority to approach individuals would hamper the police in the performance of their other vital tasks.” De Bour, 40 N.Y.2d at 218. -12- To guide courts in assessing the reasonableness of police conduct, this Court has defined four stages of police-citizen interaction. People v. Moore, 6 N.Y.3d 496, 498 (2006); De Bour, 40 N.Y.2d at 215-17. At issue here is the minimum level inquiry an officer can make, a request for information, which is a “general, nonthreatening encounter in which an individual is approached for an articulable reason and asked briefly about his or her identity, destination, or reason for being in the area.” See People v. Hollman, 79 N.Y.2d 181, 191 (1992); People v. Garcia, 20 N.Y.3d 317, 322 (2012). As long as the officer has an “objective credible reason” for making a level- one inquiry, he “may approach a private citizen on the street for the purpose of requesting information,” even “in the absence of any concrete indication of criminality.” Hollman, 79 N.Y.2d at 184, 189; De Bour, 40 N.Y.2d at 213. Put another way, the “basis for this inquiry need not rest on any indication of criminal activity on the part of the person of whom the inquiry is made but there must be some articulable reason sufficient to justify the police action which was undertaken.” De Bour, 40 N.Y.2d at 213. So long as they “do not act on a whim or caprice,” police officers have “fairly broad authority” to request information “in their law enforcement capacity.” Hollman, 79 N.Y.2d at 190, citing De Bour, 40 N.Y.2d at 219. Whether the police officer has a right to make a request for information “will hinge on the manner and intensity of the interference, the gravity of the crime involved and the circumstances attending the encounter.” De Bour, 40 N.Y.2d at 219. -13- The police inquiry made here occurred in a building enrolled in the trespass affidavit program, which originated in the early 1990s in Manhattan to combat the prevalence of drug dealing in residential buildings. “Before TAP, officers had to deal informally with landlords to get permission to enter private buildings in search of drug sales. TAP provided a formal process for building owners to permit officers to conduct ‘vertical patrols’ inside the buildings.” Ligon v. City of New York, 925 F.Supp.2d 478, 517 (S.D.N.Y. 2013). To enroll a building in TAP, “a building owner or manager files a ‘trespass affidavit’ with police stating that the building has been plagued by illegal drug trade and asks police to patrol the building for trespassers.” People v. Roque, 99 N.Y.2d 50, 52 (2002). The officers then conduct “vertical sweeps, or vertical patrols,” “to find and apprehend trespassers who are in residential buildings to buy or sell drugs.” Id. Towards that end, police officers “stop people they encounter in the halls to ask for identification and to inquire if they are residents or otherwise lawfully in the building.” Roque, 99 N.Y.2d at 52.8 8 Police officers conduct similar patrols in New York City Housing Authority (NYCHA) buildings, where the New York City Police Department (NYPD) is the lawful custodian. People v. Wannamaker, 93 A.D.3d 426, 427 (1st Dept. 2012) (officers’ duties as custodians of the NYCHA buildings included “keeping these buildings free of trespassers”); People v. Williams, 16 A.D.3d 151, 151 (1st Dept. 2005) (same). The NYPD has been responsible for safety within NYCHA buildings since 1995, when the Housing Authority Police Department merged with the NYPD. See Ganley v. Guiliani, 94 N.Y.2d 207 (1999), citing Nickels v. New York City Housing Authority, 208 A.D.2d 203 (1st Dept.), aff’d 85 N.Y.2d 917 (1995). -14- As defendant acknowledges, the police posed a level-one request for information when they asked defendant whether he lived in the building. See, e.g., People v. Anderson, 306 A.D.2d 54, 54 (1st Dept. 2003) (question whether the defendant lived in the building was a level-one inquiry); Tinort, 272 A.D.2d at 206. As stated, a level-one request for information is permissible even when a suspect’s behavior “is not necessarily indicative of criminality.” People v. Hendricks, 43 A.D.3d 361, 363 (1st Dept. 2007), citing De Bour, 40 N.Y.2d at 210. Indeed, when police officers conducting a vertical patrol of a trespass-prone residence encounter an individual in a common area of the building, it is “standard practice” to ask whether he or she lives there or is an invited guest. Hendricks, 43 A.D.3d at 362. More significantly, the intermediate appellate courts have routinely found that police officers have an objective credible reason to pose such a non-threatening question even without any greater indication of possible criminality. See Tinort, 272 A.D.2d at 206 (where the officer “observed” defendant in a TAP building, lawful for the officer to ask him whether he lived there); People v. Lightfoot, 22 A.D.3d 865, 865-66 (2d Dept. 2005) (in a building with posted “no trespassing” signs, lawful for officer to ask the defendant his name and whether he knew anybody who lived in the building); see also Hendricks, 43 A.D.3d at 362-63 (where the defendant, who opened the door for the police officer to admit him into the building, “appeared to be staying in the vestibule” without leaving the building, the officer had an objective credible reason to ask if he was a resident, even though the “defendant’s activities were not necessarily -15- indicative of criminality”); Abad, 279 A.D.2d at 359 (lawful for officer to ask the defendant why he was in the building when he entered at the same time as someone who had just been found to be a trespasser). Applying these standards, the suppression court and Appellate Division correctly determined that the officers were justified in asking defendant whether he lived in the TAP building where they were conducting a vertical patrol. To begin, the building was particularly vulnerable to crime: the residence was in a dangerous neighborhood and lacked security personnel (Nieves: A10, A26). Crime had, in fact, infiltrated the building to such a degree that the building manager had enrolled it in TAP so that police officers would patrol the building to keep residents safe from trespassers and their criminal activity (Nieves: A11-12). Consistent with that program, the lobby of this residence was strictly off-limits to the general public; there was a sign that prohibited trespassing and warned violators of arrest, a lock on the front door, and guests could gain entry only if a resident admitted them into the building through the buzzer system (Nieves: A19-A20, A25). While patrolling the building for trespassers, officers encountered defendant in the nonpublic lobby, a common area where a non-resident trespasser was likely to be loitering (Nieves: A13). Defendant was “just standing” in the lobby (Nieves: A25); -16- he was not walking towards an apartment or entering or exiting the building, as a resident or guest would presumably be doing.9 Defendant insists that his mere presence in a TAP building did not provide the officer with a sufficient foundation for a level-one encounter. He is wrong. After all, defendant’s mere presence in the TAP building as a non-resident or unauthorized stranger itself constitutes a crime. See Penal Law § 140.10(a) (defining third-degree criminal trespass as knowingly entering or remaining unlawfully in a building “which is fenced in or otherwise enclosed in a manner designed to exclude intruders”). Indeed, not only had the building legitimately been restricted to tenants and invited guests, but the building’s management had requested police assistance to combat the specific problems caused by unauthorized strangers dealing drugs, trespassing, and committing other crimes in the building.10 Given the nature and history of the apartment building and the fact that defendant had no legal right to be present there unless he was a resident or guest, officers had an “objective credible reason not necessarily indicative of criminality,” Hollman, 79 N.Y.2d at 185, to ask defendant 9 The officers had been in the building “a few minutes” before they arrested defendant (Nieves: A23). 10 Defendant emphasizes that there was no testimony that the building was drug- prone (Defendant’s Brief at 16). But defendant ignores the evidence that it was a TAP building. That alone means that the landlord had filed a trespass affidavit with police “stating that the building ha[d] been plagued by illegal drug trade and ask[ing] police to patrol the building for trespassers.” Roque, 99 N.Y.2d at 52; see also Ligon, 925 F.Supp.2d at 517. -17- whether he lived there. See Tinort, 272 A.D.2d at 206; Lightfoot, 22 A.D.3d at 866; Hendricks, 43 A.D.3d at 362; Anderson, 306 A.D.2d at 54.11 Despite the abundance of cases supporting the Appellate Division’s holding, defendant contends that “courts have historically relied on more than mere presence in upholding level-one stops inside TAP buildings” (Defendant’s Brief at 18). In fact, in Ligon v. City of New York, Judge Schira Scheindlin found that, under New York state law, “[m]ere presence in a drug-prone NYCHA building with a history of trespassing has been identified as an objective, credible reason justifying Level 1 questioning.” Ligon, 925 F.Supp.2d at 491-92, citing Hendricks 43 A.D.3d at 362. Certainly, defendant cites several cases where the defendant’s conduct presented additional factors justifying police intrusion (Defendant’s Brief at 18-19). But the Appellate Division’s finding in this case is entirely consistent with cases that upheld level-one inquires on similar facts. See Tinort, 272 A.D.2d at 206; Lightfoot, 22 A.D.3d at 865; Hendricks, 43 A.D.3d at 362-63. Nonetheless, defendant erroneously equates the police encounter that occurred inside the common area of this restricted apartment building with police inquiries that take place on a street corner or other public space. Defendant’s reliance on cases involving street encounters (Defendant’s Brief at 14-15) is fundamentally flawed. In 11 Defendant’s assertion that he could have walked away when the police approached him (Defendant’s Brief at 17), while true, is entirely irrelevant to the facts here. -18- McIntosh, 96 N.Y.2d at 526, this Court held that the mere fact that a commercial passenger bus had been traveling from New York City, described as a “known source city for narcotic drugs,” did not constitute an objective credible reason for police officers to demand that all passengers aboard the bus produce tickets and identification. Likewise, in Matter of Michael F., 84 A.D.3d 468, 468 (1st Dept. 2011), the First Department concluded that officers lacked an objective credible reason to request information from an individual simply because he was congregating on a street corner in a high-crime area with a group of other young men late at night on New Year’s Eve. These circumstances are entirely inapposite to the case at bar. In the police encounters in a public space, the individuals who were stopped by the police had an inherent right to be present on a street corner or on a commercial bus. McIntosh, 96 N.Y.2d at 526; Michael F., 84 A.D.3d at 468. However, there is no right to be present in the common area of an apartment building that has legitimately been restricted to tenants and invited guests. Unlike defendant’s cited cases, this police encounter did not occur in a public space in a high crime area. Rather, the inquiry occurred in a location where mere presence as an unauthorized intruder constituted a crime. Accordingly, the Appellate Division correctly ruled that the police had an objective credible reason to question defendant in a TAP building, “not based merely on the reputation of the area, but also on the fact that the building was so prone to trespassing” from the surrounding high-crime area “that the landlord had ‘request[ed] -19- police assistance in removing intruders.’” Barksdale, 110 A.D.3d at 499, citing Tinort, 272 A.D.2d at 206. Defendant notes that the nature and location of an area “alone cannot serve as the justification for untoward or excessive police behavior against those of our citizens who happen to live, work or travel in what are characterized as ‘high crime areas’” (Defendant’s Brief at 14-15), citing People v. Howard, 147 A.D.2d 177, 182 [1st Dept. 1989]). Just as certainly, residents who live in a high-crime area are entitled to the fundamental right to feel safe in their homes. See Davis v. City of New York, 902 F.Supp.2d 405, 421 (S.D.N.Y. 2012), infra at 22-23. Those citizens who requested police assistance to banish trespassers and drug dealers from their lobbies, hallways, and stairwells should not have to contend with intruders simply because they do not have a doorman, security guard, or other building employee to restrict access. The Appellate Division properly characterized the police questioning here as “the type of minimally intrusive question that a building employee might ask.” Barksdale, 110 A.D.3d at 499. And, that inquiry here was supported by an objective, credible reason. Defendant also relies on the decision of a different First Department panel in Johnson, 109 A.D.3d at 449 (Defendant’s Brief at 20-21). Of course, Johnson is not controlling on this Court. Johnson’s three-judge majority wrongly concluded that officers conducting a vertical patrol of a NYCHA building did not have a lawful basis to ask the defendant whether he lived in the building. As the dissent noted, the majority erroneously equated a police inquiry that occurred inside a restricted public -20- housing apartment building to one conducted on a street corner and relied on rules governing a level-one inquiry in a public space that were “not dispositive” to the facts at hand, where officers were lawful custodians of the NYCHA apartment building and were charged with the duty of keeping the building free of trespassers. Johnson, 109 A.D.3d at 452. Citing Hendricks, 43 A.D.3d at 363, the dissent emphasized that police officers are permitted to ask an individual whether he has a legitimate basis to be inside a restricted, drug-prone apartment building even when the individual’s conduct is not necessarily indicative of criminality. Johnson, 109 A.D.3d at 452. Defendant’s assertion that Johnson “firmly established” that mere presence in a NYCHA building is not enough for a level-one inquiry (Defendant’s Brief at 6) runs contrary to the numerous cases cited by the dissenting justices and in this brief. See Tinort, 272 A.D.2d at 206; Lightfoot, 22 A.D.3d at 865; Anderson, 306 A.D.2d at 54; Hendricks, 43 A.D.3d at 362-63. Accordingly, Johnson is an outlier among decisions from the First Department and should be treated as such. Finally, defendant’s characterization of Judge Scheindlin’s opinion of trespass statutes in Davis, 902 F.Supp.2d at 421 (Defendant’s Brief at 21-22), requires clarification. The judge remarked that “[p]rohibitions on loitering have a long and ugly history in New York City”; that statement was related to a case involving a public housing resident who had been arrested for trespassing in his own building by sitting in a stairwell, in violation of a “no loitering” sign (emphasis added). Contrary to -21- defendant’s representation (Defendant’s Brief at 21), Judge Scheindlin did not say the same thing about statutes barring non-resident trespassers. In fact, she acknowledged: Prohibiting trespass and loitering on NYCHA property by uninvited strangers is understandably important to many residents: the buildings are their homes. The Legislature has reasonably determined that, for the safety and well- being of NYCHA residents, access to the buildings should be restricted to residents and their invited guests. Davis, 902 F.Supp.2d at 421. Unlike the suspect in Davis who was arrested for a vague prohibition against loitering in his own residence, the TAP sign announcing that “trespassers are subject to arrest” that was posted either “inside the lobby or in front of the building” (Nieves: A19-A20), unquestionably provided defendant with “fair notice” of the conduct for which he could be held criminally responsible (see Defendant’s Brief at 22). Thus, Officer Nieves’s “minimally intrusive question,” Barksdale, 110 A.D.3d at 499, was justified at its inception and “circumscribed in scope to the officers’ task as foot patrolmen.” De Bour, 40 N.Y.2d at 220. In other words, the question was directly related to the landlord’s request to keep trespassers out of the residence. Because the legality of defendant’s presence in the building turned on whether he was a lawful resident or an invited guest, and Officer Nieves had no way of determining whether defendant had legitimate grounds to be in the building without asking, the officer posed the simplest, most reasonable, and minimally intrusive question to defendant to ascertain whether he lived in the building. Indeed, as the Appellate -22- Division recognized, this inquiry was as basic and unobtrusive as a question that would be asked by a doorman or other employee charged with keeping trespassers away from the lobby. Certainly the officers’ conduct, which occurred during their vertical patrol of the building, was not based on a whim or caprice. Then, when defendant was unable to provide either the name or the apartment number of the “friend” he claimed to be visiting, the officers had probable cause to arrest him for trespass. See Tinort, 272 A.D.2d at 207 (probable cause to arrest suspect in TAP building who claimed to be visiting a friend, but “claimed not to know the friend’s name, and supplied an apartment number known by the officer to be non- existent”); Hendricks, 43 A.D.3d at 362 (probable cause to arrest suspect who could not provide apartment number of person he claimed to be visiting).12 Accordingly, the suppression court and Appellate Division correctly ruled that the razor blade recovered during the search incident to arrest was lawfully recovered. His motion to suppress the razor blade was properly denied. In sum, because record support exists for the Appellate Division’s resolution of this question of mixed law and fact, defendant’s claim is beyond this Court’s review. The evidence at the suppression hearing plainly demonstrated that the police officers had an objective, credible basis to ask defendant whether he lived in the building 12 Before the Appellate Division, defendant challenged the suppression court’s probable cause determination. The court correctly ruled his claim to be unpreserved and also rejected it on the merits. See Barksdale, 110 A.D.3d at 499. Defendant has not raised a challenge to this ruling before this Court. -23- when, during a vertical patrol, they found him in the common area of a TAP building that had legitimately been restricted to the tenants and invited guests. CONCLUSION The order of the Appellate Division should be affirmed. BETH FISCH COHEN SHEILA L. BAUTISTA Assistant District Attorneys Of Counsel November 13, 2014 Respectfully submitted, CYRUS R. V ANCE,JR. District Attorney New York County BY:~ --. s . BAUTISTA Assistant. District Attorney -24- PRINTING SPECIFICATIONS STATEMENT The word count for this brief is 5827, excluding the Table of Contents and Table of Authorities. The word processing system used to prepare this brief and to calculate the word count was Microsoft Word 2013. The brief is printed in Garamond, a serifed, proportionally spaced typeface. The type size is 14 points in the text and headings, and 13 points in the footnotes.