People v. Cecere
| Decision Date | 23 May 1972 |
| Citation | 70 Misc.2d 510,334 N.Y.S.2d 83 |
| Parties | PEOPLE of the State of New York v. Barbara Hyde CECERE, Defendant. |
| Court | New York City Court |
Defendant is charged with the violation of Trespass, being Penal Law, § 140.05 ) and with the violation of Harassment being Penal Law, § 240.25 ). Trial was held without a jury on the charges. At the close of the People's case and again at the close of the defendant's case defendant moved that the charges be dismissed. Both the People and the defendant have submitted written briefs and these motions will be taken in order. Briefly the facts are as follows. Defendant and her husband live at 47 1/2 South Main Street in the City of Batavia; the complainant is one John W. Anna, an investigator with the New York State Police, who resides at 49 South Main Street, in the City of Batavia. The houses are adjacent to one another. On or about January 1 or 2, 1972, the defendant and her husband took up residence at the address as aforesaid. Shortly after their arrival Mr. Anna informed the defendant that he did not care for dogs and to keep their dog off his property. On several occasions it appears the dog did get onto the complainant's property and on one occasion or more the complainant did summon the City Dog Warden. It does not appear from the testimony that at any time did the complainant tell the defendant or her husband that they would not be allowed to come upon his property. Thereafter and on January 23, 1972, about 4:00 A.M. the complainant was awakened by a dog barking and upon investigation he discovered that the dog had been tied on a leash about twenty-five (25 ) long, that the dog had in some manner slipped the leash partially and had fallen into the cellar window-well and was choking on the leash. Mr. Anna went down to his cellar, untied the dog and called the City Police. The police did come, took the dog and took said dog to the City Dog Pound. On the same day at about 1:00 in the afternoon, the defendant came on the front porch of the Anna house, knocked on the door and asked Mr. Anna what happened to her dog. The complainant informed her that the dog was at the City Dog Pound; the complainant then apparently told the defendant to get off the front porch. Several minutes followed when the defendant had some conversation with the complainant and the complainant continuing to insist that the defendant leave the premises finally took the defendant by the arm and removed her from his front porch. From this situation came the allegation of the charge of Trespass. The defendant then went onto the front yard of complainant's house, turned around and said to the complainant 'You are an asshole,' and then apparently retreated to her own house. From this incident arose the charge of Harassment.
It should be stated initially that the complainant, John W. Anna, prepared both informations. On both such documents, denoted 'Information/ Complaint' the full charge was typed up and presented to the City Court for signature, the same having been executed by the complainant. Likewise separate warrants for each charge were also prepared by the complainant. There therefore exists a question and a dichotomy as to whether the complainant is acting in his individual capacity or as an investigator with the State Police. In any event on the charge of Trespass the information denotes the charge as 'the violation of Criminal Trespass, 4th. contrary to the provisions of Section 140.05 of the Penal Law of the State of New York.' The defendant moved that this information be dismissed upon the grounds that there is no such crime as Criminal Trespass, '4th' Degree. This change occurred in the Laws of 1971, Chapter 307, which was effective September 1, 1971 and the former violation of Criminal Trespass in the Fourth Degree (L.1969, ch. 341) is now simply denoted as 'Trespass' and bears the same section number, Penal Law, § 140.05. This motion to dismiss is denied upon the grounds that the Criminal Procedure Law, § 100.15(3) states that 'The factual part of such instrument must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges. * * *' It would seem that the factual part of the information does support the charge of Penal Law, § 140.05, since amended and does spell out the violation of 'Trespass.'
The violation of Trespass is defined as 'A person is guilty of trespass when he knowingly enters or remains unlawfully in or upon premises.' The Penal Law, § 140.00(5) sets forth definitions of 'enter or remain unlawfully'. It is stated therein that a person "enters or remains unlawfully' in or upon premises when he is not licensed or privileged to do so.' It thereby devolves in the instant situation whether the defendant had a license to enter upon the complainant's premises, and more specifically upon the front porch of the Anna property. Did, therefore, the defendant knowingly enter and remain unlawfully upon the premises?
It appears from the testimony given at the trial that the defendant had good cause or good reason to know or to think that the complainant would know of the whereabouts of her dog. She had placed the dog on a leash at 3:00 A.M. on the same date, and in the morning there was no dog attached to the leash. It should also be kept in mind that in our particular society it is normally proper to go to a neighbor's house or at least to a neighbor's front porch, ring a doorbell or knock upon a door and seek information without the danger of being charged with Trespass. This is so unless one has been specifically told or ordered not to come onto a neighbor's front porch. It is here the question of license appears and there is no evidence from the testimony given that the complainant had ever withdrawn his consent or his license for the defendant to go upon the complainant's property.
In People v. Lawson, 38 Misc.2d 611, 238 N.Y.S.2d 839 (1963) the defendants entered into a real estate management office to induce the manager to lease an apartment to one of the defendants; they were unsuccessful in this endeavor but they persisted in remaining for over two hours in spite of repeated demands by the manager that they leave. They disregarded the manager's request that they leave because he wished to close the office, it being 5:00 in the afternoon; by remaining they precluded him from leaving unless he wished to leave the office and leave them there which he would be unlikely to do. By remaining in the office and by their refusal to leave when requested to do so by the complainant and by a police officer, their act constituted an unlawful intrusion. Such an act under Penal Law, § 140.05 as amended would constitute remaining 'unlawfully in or upon premises.' The defendants were found guilty of Trespass. (See People v. Lawson, 38 Misc.2d 611, 614, 238 N.Y.S.2d 839, 842)
The Lawson case is readily distinguishable from the instant case. It does demonstrate how one can lawfully enter a premises, but how one can have the license to remain withdrawn and how such remaining may become unlawful. It is further distinguishable by constituting an extreme situation of the instant case. The defendant has cited People v. Popack, 14 N.Y.2d 566, 248 N.Y.S.2d 657, 198 N.E.2d 44 and People v. Barton, 18 A.D.2d 612, 234 N.Y.S.2d 263. I do not feel that either of these cases is controlling in the instant situation. It is quite evident from the testimony given at the trial that when the complainant asked the defendant to leave that she did leave. The fact that she did not leave as fast as the complainant might desire and the fact that the complainant may have taken her arm and 'assisted' defendant off his property does not seem to constitute the criminal charge of Trespass. The case of Rager v. McCloskey, 305 N.Y. 75, 111 N.E.2d 214 would seem to best demonstrate this situation. In this case a civil charge for Trespass was brought and the Court stated as follows:
...
To continue reading
Request your trial
-
People v. Deignan
...as defined in Section 240.00 of the Penal Law without a showing of special circumstances ...." A later case of People v. Cecere, 70 Misc.2d 510, 514, 515, 334 N.Y.S.2d 83 (City Court, City of Batavia 1972) also provided extensive discussion of the question of "public place". There the defen......