This criminal matter was commenced by the filing with this court of an accusatory instrument alleging that on June 4, 2019 the defendant violated Penal Law §140.10(e), Criminal Trespass in the Third Degree, a class B misdemeanor. At arraignment, the defendant pled not guilty to the charges. On November 20, 2020 defense counsel filed a notice of motion seeking dismissal of the charge on the grounds that the accusatory instrument lacks sufficient non-hearsay allegations and that the accusatory instrument fails to state a cause of action against the defendant. In defendant’s counsel’s affirmation, he asks for dismissal of the accusatory instrument in the interest of justice and for such other and further relief as to the court deems just and proper. The Columbia County District Attorney’s office has stated on the record that it will not be submitting anything in opposition to the defendant’s motion. The accusatory instrument alleges that on June 4, 2019: the defendant knowing entered or remained unlawfully in a building or real property where a building is used as a public housing project when the defendant previously received notice of trespass from the Hudson Housing Authority that was served to the defendant 5/29/19. The defendant did remain in the public housing project and was observed on surveillance video in the main lobby and on the 4th floor entering room 412 of the Bliss Tower apartments.” Annexed to the accusatory instrument was a copy of a letter dated May 21, 2019 stating that the letter was a “formal and legal warning” from the Hudson Housing Authority notifying the defendant that he was ” no longer allowed access to this project. If you are caught on this project you will charged with Criminal Trespass on a Federal Facility and will be arrested.” The letter further states that would be no further warnings and the notice did not expire. In support of the motion, the defense counsel has submitted his affirmation arguing that the charge should be dismissed because the complaint fails to state a cause of action and should be dismissed. The defense counsel further affirms that the defendant entered the premises as an invitee, therefore she lacked the necessary intent required in PL §140.10. Defense counsel also alleges that the defendant was unaware that she was not permitted to enter the subject premises. Defendant, in her affidavit states that she believed she had a right to be at the subject premises. Defense counsel concludes that as such, the defendant lacks the necessary intent or knowledge to commit the charged offense. Also, in support of his motion, the defendant included her affidavit wherein she states that he believed he had a right to be there, as an invitee and that she was invited there by her sister. * * * Penal Law §140.10 states in pertinent part: A person is guilty of criminal trespass in the third degree when he knowingly enters or remains unlawfully in a building or upon real property (e) where the building is used as a public housing project in violation of conspicuously posted rules or regulations governing entry and use thereof. Criminal trespass in the third degree is a class B misdemeanor. Criminal trespass is not proven absent evidence of criminal intent, which entails knowledge, possessed by a person charged, that his or her presence is unauthorized. People v. Cheyne, 93 Misc 2d 554 (Dist. Ct. 1978). The intruder must have been aware of the fact that he or she did not have a license to enter or remain on the premises. People v. Justesen, 30 Misc 3d 38 (App. Term 2010); People v. Powell, 180 Misc 2d 627 (Sup. Ct., Bronx County 1999). The prosecution must provide sufficient non-hearsay allegations that the defendant was knowingly present where she was not welcome. The accusatory instrument includes copies of the following documents: A Notice of Trespass dated May 21, 2019 addressed to the defendant and featuring a handwritten note in the upper right corner stating, “Served 5/21/19 2 30 P” and stating, “Be advised that this is a formal and legal warning from the City of Hudson Housing Authority that you are no longer allowed access to this project. If you are caught on this facility you will be charged with Criminal Trespass on a Federal Facility and will be arrested.” A copy of an email sent from Tricia Mayo, Administrative Assistant for the Hudson Housing Authority, to Hudson Police Chief Edwin Moore dated May 21, 2019 at 3:06 PM. In that email, which is apparently a business record of both the housing authority and the police department, Ms. Mayo writes, “Thea was served today at 2:30 PM. I informed her that she has until 4pm to vacate the unit.” Defense counsel argues that the accusatory instrument should be dismissed because it lacks non-hearsay allegations in support of the element that the defendant knowingly entered or remained in a building used as a public housing project in violation of rules or regulations governing entry and use thereof. The Court respectfully disagrees. The email from Ms. Mayo to Chief Moore constitutes a business record and as such is not hearsay. Furthermore, in the email, the author — Ms. Mayo — writes that the defendant “was served” on May 21, 2019 (the date of the trespass notice) and that Ms. Mayo informed the defendant when the defendant had to vacate the unit. Notwithstanding Ms. Mayo’s use of the passive voice to report that the defendant “was served,” the Court concludes that, taken together, these non-hearsay statements provide enough support to the allegations in the factual part of the accusatory instrument to withstand a motion to dismiss. Thus, the factual part of the accusatory instrument alleges facts of an evidentiary character supporting or tending to support the charge that the defendant violated PL §140.10(e), and every element of the offense charged and the defendant’s commission thereof is supported by the non-hearsay allegations in two documents identified above. As such, the Court determines that the accusatory instrument is facially sufficient (see CPL §100.15(3) and CPL §100.40(1)(b)). Accordingly, the Court DENIES the defendant’s motion to dismiss the accusatory instrument on the basis that it lacks non-hearsay allegations. The defendant next moves to dismiss the accusatory instrument on the basis that it fails to state a cause of action. Specifically, defendant’s counsel argues that the defendant could not have violated PL §140.10(e) because the defendant was an invited guest of a resident of the housing complex. In People v. Eury, 172 AD3d 401 (1st Dept. 2019), the Appellate Division (First Department) determined that a police officer had probable cause to arrest a defendant for violating PL§140.10(f) where the arresting officer knew that the defendant had been on a list of persons barred from entering a public housing project and had received a trespass notifying the defendant in writing that he was barred from returning to the complex. The court noted that trespass notices often have exceptions that allow recipients to visit family members who reside in a public housing project, and that in those situations, “since the person is legally authorized to be on site despite the trespass notice, he/she should be allowed to visit, with police intrusion aimed primarily at ascertaining that the person is headed to the right apartment.” The trespass notice, as attached to the accusatory instrument, contains no such carveout permitting visitation with a resident of the housing authority. The court is unpersuaded that any such alleged license or permission granted by a resident of the housing complex supersedes a public housing project’s right to bar trespassers from the housing project after the required notification pursuant to PL §140.10. Accordingly, the Court DENIES the defendant’s motion to dismiss the accusatory instrument for failing to state a cause of action. Finally, the defendant seeks to dismiss the accusatory instrument in the interests of justice. PL §170.40(1) sets forth ten criteria for the court to consider in deciding a motion to dismiss a misdemeanor in the interest of justice. The defendant has failed to develop a record that addresses each of these criteria, and therefore the motion to dismiss the accusatory instrument in the interest of justice is DENIED. As to the allegations of fact in the moving papers, such facts that must be decided at trial. Based upon the foregoing, the motion is DENIED. The foregoing constitutes the opinion order and decision of this Court. Dated: February 3, 2021
