People v. Westwood

• Decision Date: 20 September 2016
• Citation: 53 Misc.3d 74,2016 N.Y. Slip Op. 26303,41 N.Y.S.3d 347
• Parties: The PEOPLE of the State of New York, Respondent, v. John WESTWOOD, Appellant.
• Court: New York Supreme Court — Appellate Term

53 Misc.3d 74

41 N.Y.S.3d 347

2016 N.Y. Slip Op. 26303

The PEOPLE of the State of New York, Respondent,

v.John WESTWOOD, Appellant.

Supreme Court, Appellate Term, Second Dept., 2, 11 & 13 Judicial Dist.

Sept. 20, 2016.

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

Richard A. Brown, District Attorney, Kew Gardens (John M. Castellano, Johnnette Traill, Merri Turk Lasky and Mariana Zelig Borenstein of counsel), for respondent.

PRESENT: PESCE, P.J., WESTON and ALIOTTA, JJ.

Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Elisa S. Koenderman, J.), rendered April 16, 2012. The judgment convicted defendant, upon a jury verdict, of criminal trespass in the second degree, aggravated harassment in the second degree, stalking in the fourth degree, and harassment in the second degree.

ORDERED that the judgment of conviction is modified, on the law, by vacating the conviction of aggravated harassment in the second degree and dismissing the count of the accusatory instrument charging that offense; as so modified, the judgment of conviction is affirmed.

The People charged defendant, in an information, with criminal trespass in the second degree (Penal Law § 140.15 ), two counts of aggravated harassment in the second degree (Penal Law § 240.30[1][a], [b] ), stalking in the fourth degree (Penal Law § 120.45[1] ), and harassment in the second degree (Penal Law § 240.26[3] ).

Defendant repeatedly moved to dismiss the accusatory instrument, arguing that all of the counts were jurisdictionally infirm owing to the lack of sufficient factual averments to establish the offenses and, additionally, that the aggravated harassment in the second degree statute was unconstitutionally vague and overbroad. The Criminal Court (Lenora Gerald, J.) denied the motions to dismiss, and, in the last of the orders, enjoined the defense “from making any further applications to the court on the issue of facial sufficiency or pursuant to CPL 170.30 and CPL 170.35.”

At a jury trial, after the court (Elisa S. Koenderman, J.) dismissed the first count of aggravated harassment in the second degree and denied defendant's motion for a mistrial on the basis of prosecutorial misconduct on summation, the jury convicted defendant of the four remaining counts of the accusatory instrument. At sentencing, the court denied defendant's motion, pursuant to CPL 330.30, to set aside the verdict on the ground that the order of Judge Gerald had prevented him from moving to dismiss the accusatory instrument on statutory speedy trial grounds (see CPL 30.30 ), thereby violating his right to due process.

As the People concede, Penal Law § 240.30(1) has been declared unconstitutional (see People v. Golb, 23 N.Y.3d 455, 467–468, 991 N.Y.S.2d 792, 15 N.E.3d 805 [2014] ), a determination that is given retroactive effect (People v. Cesaire, 127 A.D.3d 1226, 1226, 5 N.Y.S.3d 906 [2015] ) where, as here, the constitutional claim has been properly preserved (e.g. People v. Scott, 126 A.D.3d 645, 646, 6 N.Y.S.3d 247 [2015] ). Consequently, the conviction of aggravated harassment in the second degree is vacated and the count of the accusatory instrument charging that offense is dismissed.

The count of the accusatory instrument alleging criminal trespass in the second degree was facially sufficient. “A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution” (People v. Dreyden, 15 N.Y.3d 100, 103, 905 N.Y.S.2d 542, 931 N.E.2d 526 [2010] ; quoting People v. Case, 42 N.Y.2d 98, 99, 396 N.Y.S.2d 841, 365 N.E.2d 872 [1977] ). As the record does not reveal that defendant waived prosecution by information (People v. Dumay, 23 N.Y.3d 518, 522, 992 N.Y.S.2d 672, 16 N.E.3d 1150 [2014] ), the sufficiency of the accusatory instrument must be evaluated under the standards that apply to an information (see CPL 100.40[1][c] ; People v. Jackson, 18 N.Y.3d 738, 741, 944 N.Y.S.2d 715, 967 N.E.2d 1160 [2012] ; see also People v. Kalin, 12 N.Y.3d 225, 228, 878 N.Y.S.2d 653, 906 N.E.2d 381 [2009] ). The purpose of an information is to “ensure[ ] that a legally sufficient case can be made against the defendant” (Dumay, 23 N.Y.3d at 522, 992 N.Y.S.2d 672, 16 N.E.3d 1150 ), and an information is sufficient on its face if it contains nonhearsay factual allegations of an evidentiary nature which establish, if true, every element of the offenses charged and the defendant's commission thereof (see CPL 100.15[3] ; 100.40[1]; People v. Henderson, 92 N.Y.2d 677, 679, 685 N.Y.S.2d 409, 708 N.E.2d 165 [1999] ; People v. Alejandro, 70 N.Y.2d 133, 136–137, 517 N.Y.S.2d 927, 511 N.E.2d 71 [1987] ; People v. Hargrove, 47 Misc.3d 136[A], 2015 N.Y. Slip Op. 50499[U], 2015 WL 1566387 [App.Term, 2d Dept., 2d, 11th & 13th Jud.Dists.2015] ). By failing to raise a purported hearsay defect in the accusatory instrument at the trial level, defendant has waived any claim based on hearsay defects in the accusatory instrument (People v. Keizer, 100 N.Y.2d 114, 121, 760 N.Y.S.2d 720, 790 N.E.2d 1149 [2003] ; People v. Casey, 95 N.Y.2d 354, 362–363, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000] ; People v. Glover, 41 Misc.3d 143[A], 2013 N.Y. Slip Op. 52059[U], *1, 2013 WL 6500889 [App.Term, 2d Dept., 2d, 11th & 13th Jud.Dists.2013] ).

The facts alleged in support of the charge of criminal trespass in the second degree provide reasonable cause to believe that defendant “knowingly enter[ed] or remain[ed] unlawfully in a dwelling” (Penal Law § 140.15[1] ). The accusatory instrument stated that a surveillance video in the complainant's building, at the time and location alleged for the commission of the offense, recorded

“the defendant wait[ing] at the entrance of the above location carrying a plastic bag until someone entered the building ... [and] that ... the defendant follow[ed] someone into said building and then walk[ed] up the stairs to the complainant's floor.... [T]he complainant [who] is the legal custodian of the above location, [stated] that there is a door buzzer system which regulates who enters the ... location, that the defendant is not a resident of the ... location and that he does not have permission or authority to enter or remain in said premises.”

“[C]ircumstantial evidence [may] establish the lack of license or privilege” in criminal trespass prosecutions (Matter of Lonique M., 93 A.D.3d 203, 207, 939 N.Y.S.2d 341 [2012] ; see also People v. Jackson, 118 A.D.3d 635, 636, 988 N.Y.S.2d 184 [2014] ; People v. Quinones, 173 A.D.2d 395, 396, 570 N.Y.S.2d 26 [1991] ), on the basis of which it has been held, “as a matter of common sense and reasonable pleading,” in a case involving the absence of permission or a privilege to remain in a public park after closing, that it is unnecessary “to plead and prove that no police officer or Parks Department employee had authorized defendant to ignore a posted closing time” (People v. Davis, 13 N.Y.3d 17, 31–32, 884 N.Y.S.2d 665, 912 N.E.2d 1044 [2009] ). In Davis, the Court of Appeals went on to state:

“Such information is uniquely within a defendant's knowledge, and to require the People to plead and negate the existence of the relevant permission would require them to go to intolerable lengths, including innumerable interviews of officers and employees in the area during the date in question.... These efforts would serve no useful purpose of narrowing issues or giving notice, but would merely give rise to technicalities that could be used belatedly to stifle an otherwise viable prosecution” (id. at 32, 884 N.Y.S.2d 665, 912 N.E.2d 1044 [internal quotation marks and citations omitted] ).

This rule of pleading has been applied to a charge of criminal trespass in the second degree in an apartment building, where it was held that the People were “not required to negate the possibility that one of the numerous residents of the building invited defendant to enter” (Jackson, 118 A.D.3d at 636, 988 N.Y.S.2d 184 ; see also Matter of Lonique M., 93 A.D.3d at 207, 939 N.Y.S.2d 341 ). Defendant, who, the complainant alleged, did not reside in the building, gained entry not by being “buzzed in” by a resident or another person authorized to do so, but by waiting for someone to enter and following that person into the building. A common area of an apartment building which is separated from the outside by a locked door and buzzer system is a part of a “dwelling” as defined in Penal Law § 140.00(3) (see e.g. People v. Maisonet, 304 A.D.2d 674, 760 N.Y.S.2d 58 [2003] ; People v. Torres, 162 A.D.2d 385, 556 N.Y.S.2d 920 [1990] ). Since the sufficiency of an information is measured by reasonable cause (see CPL 100.40[1][b] ), not the much more demanding standard of proof beyond a reasonable doubt required at trial (see Henderson, 92 N.Y.2d at 680, 685 N.Y.S.2d 409, 708 N.E.2d 165 ), the allegations of the nature of defendant's entry into the premises, along with the conduct exhibited following the entry, satisfy the pleading requirements of an information charging criminal trespass in the second degree.

The facts alleged in support of the charge of stalking in the fourth degree are also legally sufficient in that they establish the elements that defendant “engage[d] in a course of conduct ... and [knew] or reasonably should [have] know[n] that such conduct [was] likely to cause reasonable fear of material harm to the physical health, safety or property” of the complainant (Penal Law § 120.45[1] ). The Court of Appeals has held that there is no need for proof that the accused intended “a specific result, such as fear or harm” (People v. Stuart, 100 N.Y.2d 412, 426, 765 N.Y.S.2d 1, 797 N.E.2d 28 [2003] ), or of the “subjective fear or sensibilities of the alleged victim” (id. at 428, 765 N.Y.S.2d 1, 797 N.E.2d 28 ). It is an element of the offense that the defendant intentionally engaged in a “course of conduct,” which, while not defined in the Penal Law, has been construed to...