In re Lonique M.

• Decision Date: 16 February 2012
• Parties: In re LONIQUE M., A Person Alleged to be a Juvenile Delinquent, Appellant.Presentment Agency.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 01196
93 A.D.3d 203
939 N.Y.S.2d 341

In re LONIQUE M., A Person Alleged to be a Juvenile Delinquent, Appellant.Presentment Agency.

Supreme Court, Appellate Division, First Department, New York.

Feb. 16, 2012.

[939 N.Y.S.2d 342]

Tamara A. Steckler, The Legal Aid Society, New York (Selene D'Alessio, Steven Banks and Eileen Malunowicz of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Fay Ng of counsel), for presentment agency.

PETER TOM, J.P., and DAVID FRIEDMAN, HELEN E. FREEDMAN, ROSALYN H. RICHTER, SALLIE MANZANET–DANIELS, JJ.

RICHTER, J.

In this juvenile delinquency proceeding, the evidence at the fact-finding hearing established the following. On January 2, 2010, at approximately 9:20 p.m., Police Officer Salvatore Tevere and his partner arrived at 2230 Grand Concourse, a six-floor residential apartment building in the Bronx containing “many apartments” on each floor. The building was part of the “Clean Halls” program, where police officers have the right to enter the building to check whether illegal activities are being conducted inside. The entrance to the building was secured by an iron gate requiring the use of a key or a buzzer entry; there was also a separate front door.

[939 N.Y.S.2d 343]

The officers entered the building to conduct a “vertical” patrol, which entailed going to the top floor and checking the building, floor by floor, for “illegal activity of people looting in the building [or] trespassing.” After making sure the lobby was clear, Officer Tevere and his partner waited for the elevator. When the elevator doors opened in the lobby, Officer Tevere observed appellant and another youth, Aaron B., looking “shocked.” According to the officer, “[t]heir eyes were wide open and they seemed very nervous.” No one else was in the elevator. Officer Tevere noticed the smell of marijuana in the elevator, and saw Aaron throw what the officer believed was a lit marijuana cigarette to the floor. The officer then escorted the two youths out of the elevator and recovered the marijuana cigarette.

Officer Tevere asked appellant and Aaron if they lived in the building, and both replied that they did not. When the officer asked why they were in the building, Aaron answered that he was there to visit his friend Christopher, who lived in apartment 2A; appellant initially agreed with him. Tevere continued to question the youths, asking if they were actually there to visit Christopher. In response, appellant told Aaron, “Tell them the truth,” adding, “I don't want to get in trouble.” When Officer Tevere again asked why they were in the building, appellant admitted that they were smoking on the sixth floor. Officer Tevere subsequently placed appellant and Aaron under arrest.

Maurice McKenzie, an employee of the company that managed the building, testified that according to the tenant list, appellant did not live there. Mr. McKenzie further testified that a woman named Blankes Nunez lived in apartment 2A with her father and her two children, none of whom was named Christopher. ¹ The court credited the testimony of the two witnesses and found that the evidence established beyond a reasonable doubt that appellant committed an act that, if committed by an adult, would constitute the crime of criminal trespass in the second degree ( Penal Law § 140.15[1] ).

A person is guilty of criminal trespass in the second degree when, in pertinent part, he “knowingly enters or remains unlawfully in a dwelling” (Penal Law § 140.15[1] ). A person “enters or remains unlawfully” in or upon premises “when he is not licensed or privileged to do so” (Penal Law § 140.00[5] ). “In general, a person is ‘licensed or privileged’ to enter private premises when he has obtained the consent of the owner or another whose relationship to the premises gives him authority to issue such consent” ( People v. Graves, 76 N.Y.2d 16, 20, 556 N.Y.S.2d 16, 555 N.E.2d 268 [1990] ). The prosecution bears the burden of proving the absence of such license or privilege ( People v. Brown, 25 N.Y.2d 374, 377, 306 N.Y.S.2d 449, 254...