People v. Kerr
Decision Date | 16 July 2008 |
Docket Number | No. 2006-1478 W CR.,2006-1478 W CR. |
Citation | 20 Misc.3d 73,864 N.Y.S.2d 684,2008 NY Slip Op 28260 |
Parties | THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JAVIS KERR, Appellant. |
Court | New York Supreme Court — Appellate Term |
Appeal from order dismissed.
Judgment of conviction reversed on the law and accusatory instrument dismissed.
The appeal from the order denying defendant's motion for pretrial disclosure must be dismissed, as the appeal is not authorized by the Criminal Procedure Law (see CPL 450.10, 450.15).
In order to be facially sufficient, the accusatory instrument must set forth factual allegations providing reasonable cause to believe that defendant committed the offense charged (see CPL 100.40 [1] [b]; [4] [b]). Defendant was charged with criminal trespass in the third degree in violation of Penal Law § 140.10 (g). This subdivision provides:
Railroad Law § 83-b (1) provides:
"Any city with a population of one million or more and the counties of Monroe, Nassau, and Suffolk are authorized and empowered to adopt or amend a local law or ordinance designating any portion or portions of property consisting of a right-of-way or yard of a railroad or rapid transit railroad as a no-trespass railroad zone and providing for the conspicuous posting thereof for purposes of establishing criminal liability for trespass upon such property pursuant to subdivision (g) of section 140.10 of the penal law" (emphasis added).
The accusatory instrument is facially insufficient because it contains no factual allegation to the effect that the rail bed upon which defendant is alleged to have trespassed had been "designated and conspicuously posted as a no-trespass railroad zone . . . by the city or county in which [the rail bed was] located" (Penal Law § 140.10 [g] [emphasis added]; see...
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People v. Morales
...it must also be dismissed (see People v. Moore , 5 N.Y.3d 725, 800 N.Y.S.2d 49, 833 N.E.2d 192 [2005], supra ; People v. Kerr, 20 Misc. 3d 73, 864 N.Y.S.2d 684 [App. Term, 9th & 10th Jud. Dists. 2008] ; People v. Alejandro , 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71 [1987] ; People v. ......
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People v. Rosano, 2009 NY Slip Op 52110(U) (N.Y. App. Term 10/13/2009), 2008-475 NCR.
...9th & 10th Jud Dists 1999]; see also People v Alejandro, 70 NY2d 133 [1987]), the accusatory instrument must be dismissed (see People v Kerr, 20 Misc 3d 73 [App Term, 9th & 10th Jud Dists 2008]; see also People v Moore, 5 NY3d In view of our disposition of the matter, we do not address any ......