People v. Barnes

• Decision Date: 20 October 2015
• Docket Number: No. 141,141
• Citation: 26 N.Y.3d 986,19 N.Y.S.3d 471,2015 N.Y. Slip Op. 07577,41 N.E.3d 336
• Parties: The PEOPLE of the State of New York, Respondent, v. Thomas BARNES, Appellant.
• Court: New York Court of Appeals Court of Appeals

26 N.Y.3d 986
41 N.E.3d 336
19 N.Y.S.3d 471
2015 N.Y. Slip Op. 07577

The PEOPLE of the State of New York, Respondent
v.
Thomas BARNES, Appellant.

No. 141

Court of Appeals of New York.

Oct. 20, 2015.

Seymour W. James, Jr., The Legal Aid Society, New York City (Laura Boyd of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York City (Sheila O'Shea and Sylvia Wertheimer of counsel), for respondent.

OPINION OF THE COURT

MEMORANDUM.

41 N.E.3d 337

The order of the Appellate Term should be affirmed.

On February 15, 2011, Officer Jamar Lamey was patrolling a New York City Housing Authority building when he observed defendant in the lobby beyond the building's vestibule and a

posted “No Trespassing” sign. When asked, defendant stated that he did not reside at the building, nor was he able to identify any resident who had invited him. Having determined that defendant was neither a tenant nor an invited guest, the officer arrested him for trespassing.

41 N.E.3d 338

Defendant was charged, by information, with one count of criminal trespass in the second degree (Penal Law § 140.15[1] ), a class A misdemeanor, and one count of criminal trespass in the third degree (Penal Law § 140.10[e] ), a class B misdemeanor. He pleaded guilty to the second-degree charge and was sentenced to time served.

Defendant appealed, arguing that the misdemeanor information was jurisdictionally defective for two reasons. First, he asserted that he could not be charged with second-degree criminal trespass for being in the common area of a public housing authority building because such areas are open to the public. Second, he argued that even if he could be charged with second-degree criminal trespass, the misdemeanor information insufficiently alleged that his presence in the lobby of the building was unlawful.

The Appellate Term rejected defendant's contentions and affirmed (40 Misc.3d 133[A], 2013 N.Y. Slip Op. 51249[U], 2013 WL 3942917 [App.Term, 1st Dept.2013] ). A Judge of this Court granted defendant leave to appeal (23 N.Y.3d 1034, 993 N.Y.S.2d 247, 17 N.E.3d 502 [2014] ), and we now affirm.

The legislature has established three degrees of non-felonious criminal trespass, with each “becom[ing] progressively more serious as they approach criminal trespass in the first degree” (People v. Moore, 5 N.Y.3d 725, 727, 800 N.Y.S.2d 49, 833 N.E.2d 192 [2005] ).

A person is guilty of simple trespass, a violation, when he or she “knowingly enters or remains unlawfully in or upon premises” (Penal Law § 140.05 ).

Criminal trespass in the third degree, a class B misdemeanor, is established when a person “knowingly enters or remains unlawfully in a building or upon real property” and one of seven aggravating factors is present (Penal Law § 140.10 ). As relevant here, one such aggravating factor elevating simple trespass to criminal trespass in the third degree is “where the building is used as a public housing project in violation of conspicuously posted rules or regulations governing entry and use thereof” (Penal Law § 140.10[e] ).

Criminal trespass in the second degree, a class A misdemeanor, is committed when a person “knowingly enters or

remains unlawfully in a dwelling” (Penal Law § 140.15[1] ). A “dwelling” is defined as “a building which is usually occupied by a person lodging therein at night” (Penal Law § 140.00...