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People v. Santo

 

Criminal Court, City of New York,New York County.

The PEOPLE of the State of New York, Plaintiff, v. Lina SANTOS, Defendant.

    Decided: November 10, 1999

Glenn A. Wolther, New York City, for defendant. Robert M. Morgenthau, District Attorney of New York County, New York City (Miguel Toruño of counsel), for plaintiff.

On August 7, 1999, the defendant’s employment at a dental office was terminated.   On August 13, 1999, the defendant returned to the office.   The defendant sat in a chair and refused to leave the premises after repeatedly being told to leave by the office manager, Marcia Luria.   The defendant was arrested and taken to the 17th precinct.   At the precinct, Police Officer Michael Drew attempted to take the defendant to the fingerprint station.   The defendant repeatedly pulled away from Officer Drew and finally sat in a chair and refused to get up.   As a result of the defendant’s actions, Officer Drew was unable to fingerprint her.

The defendant was charged with criminal trespass in the third degree (Penal Law [“PL”] § 140.10[a] ) and obstruction of governmental administration in the second degree (PL § 195.05).   The defendant has moved, among other things, to dismiss both charges on the ground that the accusatory instrument is facially insufficient and to dismiss the charge of obstruction of governmental administration in the second degree on the ground that the statute defining the crime is unconstitutionally vague.   For the reasons set forth below, the defendant’s motion to dismiss count two, trespass in the third degree, is granted and the defendant’s motion to dismiss count one, obstruction of governmental administration, is denied.

FACIAL SUFFICIENCY

Criminal Procedure Law (“CPL”) § 100.40 sets forth the standards governing the facial sufficiency of misdemeanor complaints and misdemeanor informations.   The factual part of a misdemeanor complaint, along with any supporting depositions which accompany it, must establish reasonable cause to believe that the defendant committed the offenses charged in the accusatory part.   The standard for a misdemeanor information is the same as for a complaint except that the information must contain non-hearsay allegations, which if true, establish every element of the offenses charged and the defendant’s commission of those offenses.

CRIMINAL TRESPASS IN THE THIRD DEGREE

A person is guilty of violating PL § 140.10(a) “when he knowingly enters or remains unlawfully in a building or upon real property (a) which is fenced or otherwise enclosed in a manner designed to exclude intruders․” According to PL § 140.00[5], “[a] person ‘enters or remains unlawfully’ in or upon premises when he is not licensed or privileged to do so”.   This section also states that “[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.”

The defendant argues that the accusatory instrument in this case fails to meet the requirements for facial sufficiency set forth in CPL § 100.40 since it fails to set forth that the office was enclosed in a manner to exclude intruders.

In People v. MacMahon, NYLJ, 7/10/95, p. 30, col.   3 (Criminal Court, N.Y. County, 1995), the court was presented with the identical issue presented here, whether an accusatory instrument charging a violation of PL § 140.10(a) is sufficient if it fails to state that a building is “fenced or otherwise enclosed in a manner designed to exclude intruders”.   The court, in finding that such an accusatory instrument would be sufficient, stated that “the Court rejects the defendants’ argument that the complaint lacks facts establishing that the building was fenced or otherwise enclosed to exclude intruders.   It is settled that the phrase ‘fenced or enclosed in a manner designed to exclude intruders’ modifies the phrase ‘real property’ and not the word ‘building’.   There is no requirement that a building be fenced or enclosed”.   In support of this conclusion the court cites People v. Brown, 25 N.Y.2d 374, 306 N.Y.S.2d 449, 254 N.E.2d 755 (1969), Matter of Kevin G., 71 Misc.2d 312, 335 N.Y.S.2d 788 (Fam.Ct.N.Y.County, 1972) as well as the 1988 Practice Commentary to Article 140 of the Penal Law (Donnino, Practice Commentary, McKinney’s Cons.Laws of N.Y., Book 39, Penal Law art. 140, at 12 [1988 ed.] ).   The court’s reliance on these cases, as well as the Practice Commentary, is misplaced.

In People v. Brown, supra, the Court of Appeals, reversing a conviction for trespass in the second degree in violation of PL § 140.10, stated that “[s]ince the defendant concededly entered a ‘building’, the crucial element of the crime required to be established by the people was that he either entered or remained unlawfully ” (at p. 376, 306 N.Y.S.2d 449, 254 N.E.2d 755).   The Court did not address the question of whether the People needed to prove that the building was “fenced or otherwise enclosed in a manner designed to exclude intruders” because the Court in People v. Brown, supra, was dealing with a different statute than the statute presented here and in People v. MacMahon, supra.

At the time of the commission of the crime in People v. Brown, supra, PL § 140.10 contained no subdivisions.   The statute stated that “A person is guilty of criminal trespass in the second degree when he knowingly enters or remains unlawfully in a building or upon real property which is fenced or otherwise enclosed in a manner designed to exclude intruders.” 1  It is clear that the phrase “which is fenced or otherwise enclosed in a manner designed to exclude intruders” was meant to modify only “real property” and not the word “building”.   The phrase, “upon real property which is fenced or otherwise enclosed in a manner designed to exclude intruders”, is set off from the word “building” by the word “or” which immediately follows the word “building”.

The statute which is applicable here and was applicable in People v. MacMahon, supra, reads very differently than the statute applicable at the time of People v. Brown, supra.   PL § 140.10 now contains seven subdivisions which modify either the word “building”, the words “real property” or both.   The substance of PL § 140.10, read without any of the subdivisions, states that “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.”   The phrase “which is fenced or otherwise enclosed in a manner designed to exclude intruders” is not attached to the words “upon real property” but is designated as subdivision (a).   If the legislature had intended this phrase to apply only to the words “real property” they either could have written PL § 140.10 as it was written at the time that People v. Brown, supra, was decided and added subdivisions thereafter or they could have ended the main portion of the statute following the word “or” and including “upon real property” as part of subdivision (a).   By writing PL § 140.10 as they did, it is clear that the legislature intended that the phrase “ which is fenced or otherwise enclosed in a manner designed to exclude intruders” modify both the words “building” and “upon real property” (cf.   People v. Warren, 173 Misc.2d 864, 662 N.Y.S.2d 372 [County Court, Monroe County, 1997] ).

Additionally, the 1988 Practice Commentary to Article 140 of the Penal Law, cited by People v. MacMahon, supra, does not limit the phrase “which is fenced or otherwise enclosed in a manner designed to exclude intruders” to modifying real property.   The Practice Commentary to PL § 140.10 that refers to the law in effect at the time of People v. Brown, supra, and Matter of Kevin G. supra, stated that “[t]wo places are protected by this section:  (1) a building and (2) any real property which is fenced or otherwise enclosed in a manner designed to exclude intruders” (Denzer and McQuillan, Practice Commentary, McKinney’s Cons.Laws of N.Y., Book 39, Penal Law section 140.10, at p. 351 [1967 ed.] ).   However, the Practice Commentary to Article 140 of the Penal Law that referred to the amended statute in effect at the time of People v. MacMahon, supra, states that “

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