People v. Leonard

• Decision Date: 14 June 1984
• Citation: 477 N.Y.S.2d 111,62 N.Y.2d 404,465 N.E.2d 831
• Parties: , 465 N.E.2d 831, 18 Ed. Law Rep. 671 The PEOPLE of the State of New York, Respondent, v. Peter T. LEONARD, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 111

477 N.Y.S.2d 111

62 N.Y.2d 404, 465 N.E.2d 831, 18 Ed.

Law Rep. 671

The PEOPLE of the State of New York, Respondent, v. Peter T. LEONARD, Appellant.

Court of Appeals of New York.

June 14, 1984.

John L. Perticone, Acting Public Defender (Kenneth Ira Krigstein, Binghamton, of counsel), for appellant

Patrick H. Mathews, Dist. Atty. (James P. Maxwell, Syracuse, of counsel), for respondent.

OPINION OF THE COURT

COOKE, Chief Judge.

An individual who has been issued a "persona non grata" letter by a State University president, that banishes the individual from that part of the university campus normally "open to the public", may not be convicted of trespassing for entering the campus when no proof is adduced to show that the banishment order was lawful. To sustain the burden of showing the order's lawfulness, the People must demonstrate that, given the nature and purpose of the property, the particular exercise of the power to exclude had a legitimate basis. The purpose would not be legitimate if, for example, its enforcement unduly infringed upon an independent statutory or constitutional right of the defendant to be present on the property.

Defendant was an enrolled student at the State University of New York at Binghamton (SUNY-Binghamton) from time to time over the past 10 years. On February 23, 1981, when defendant was no longer a student, the president of SUNY-Binghamton issued an order banishing him from campus by declaring him "persona non grata". This letter informed defendant that he would be subject to arrest if he returned to the campus.

SUNY-Binghamton law enforcement personnel discovered defendant at the Campus Pub on October 23, 1981. The Pub is located in the University Union building on the SUNY-Binghamton campus. Defendant was arrested and charged by information with criminal trespass in the third degree (Penal Law, § 140.10) for his allegedly unlawful presence on campus.

A nonjury trial was held in Vestal Town Court on October 19, 1982. Prior to trial, defendant and the People stipulated that: in February, 1981, defendant received a letter from SUNY-Binghamton's president declaring him "persona non grata"; defendant was not a student, faculty member, or employee at the school at that time; notwithstanding this warning, defendant was present on the campus in October, 1981; and "all times pertinent to this case, the State University of New York at Binghamton, the University Union building, and the Campus Pub were 'open to the public' within the meaning of Penal Law Section 140.00 At the request of the People, and over defendant's objection, the court found "as a matter of law" that an order of banishment "can be lawful, even if said school did not have any reason to issue it." Additionally, at the People's request, the court declined to consider any evidence on the issue of the order's lawfulness. Based on these findings and the stipulated facts, the People rested. Defendant moved to dismiss the information on the grounds that SUNY-Binghamton was powerless to issue orders of permanent exclusion, that the order was issued in violation of defendant's right to due process as he was accorded no hearing, and that the proof offered by the People as to the lawfulness of the order was insufficient. This motion was denied and defendant was convicted of the charged crime. The conviction was upheld by the County Court.

This court now reverses.

A prosecution for criminal trespass in the third degree may be maintained against a person who "knowingly enters or remains unlawfully in a building or upon real property" (Penal Law, § 140.10). Generally, a person will be deemed to "or remain unlawfully" on property when he or she does so without license or privilege (Penal Law, § 140.00, subd. 5). When the property is "open to the public" at the time of the alleged trespass, however, the accused is presumed to have a license and privilege to be present (id.). In such a case, the People have the burden of proving that a lawful order excluding the defendant from the premises issued, that the order was communicated to the defendant by a person with authority to make the order, and that the defendant defied that order (id.; see People v. Brown, 25 N.Y.2d 374, 377, 306 N.Y.S.2d 449, 254 N.E.2d 755).

At the outset, we reject defendant's claim that SUNY-Binghamton is not generally empowered to exclude persons from the university campus. Article 129-A of the Education Law governs the regulation of college campuses and other college property used for educational purposes. Beyond a mere grant of power, it requires "trustees or other governing board of every college chartered by the regents or incorporated by special act of the legislature" to "adopt rules and regulations for the maintenance of public order on college campuses and other college property" (Education Law, § 6450, subd. 1). It additionally provides that "penalties for violations of such rules and regulations shall be clearly set forth therein and shall include provisions for the ejection of a violator from such campus and property" (id.).

Pursuant to this statutory directive, the Board of Trustees of the State University of New York promulgated rules intended to "prevent abuse of the rights of others and to maintain * * * public order appropriate to a college or university campus" (8 NYCRR 535.1; see, generally, 8 NYCRR part 535). Among the authorized penalties that may be imposed for a violation of the rules of conduct (see 8 NYCRR 535.5) is to have the offending person's "authorization to remain upon the campus or other property withdrawn" and to direct that person to "leave the premises" (8 NYCRR 535.5). Failure to voluntarily comply with such a directive will subject the person to ejection (id.). It is clear, therefore, that administrators of SUNY-Binghamton have the general power to exclude from the campus persons who do not abide by the rules of conduct. A reasonable and practicable means of effectuating that policy could be to advise an individual that, due to past conduct, he or she is no longer welcome on the campus and will be subject to arrest for trespassing upon return. Exclusion is a natural concomitant to the power to withdraw a person's authorization to remain on the college campus.

There is also no merit to defendant's argument that any order of exclusion would be unlawful, as violative of due process, absent the holding of a hearing prior to its issuance. Although the campus at SUNY-Binghamton may be open generally for the enjoyment of the public, defendant, who concededly is not a student or employee at the campus, has identified no "property" or "liberty" interest in being present on campus grounds that he could be lawfully deprived of only after being accorded a hearing (cf. Board of Curators, Univ. of Mo. v. Horowitz, 435 U.S. 78, 82-84, 98 S.Ct. 948, 951-952, 55 L.Ed.2d 124; Board of Regents v. Roth, 408 U.S. 564, 568-572, 92 S.Ct. 2701, 2704-06, 33 L.Ed.2d 548). Indeed, defendant claims only that the issuance of a "persona non grata" letter unlawfully inhibits his constitutional right to travel (see, e.g., Califano v. Aznavorian, 439 U.S. 170, 99 S.Ct. 471, 58 L.Ed.2d 435; ...