Some people get arrested simply for being in a lobby of a residential building in which they do not reside. They are charged with trespassing. Many of these arrests are justified, as the people arrested are actually trespassing they do not live in the building; they are not visiting a resident; they are not there for any lawful purpose and their unwanted presence severely decreases the quality of life for the residents. Some trespassing arrests, however, are not justified and are, in fact, unlawful arrests of people who seem to be caught in a trap while going about their everyday lives in a perfectly legal way. Courts, of course, are obligated to dismiss such cases, but not before the person arrested has been inconvenienced and perhaps humiliated by the arrest and has spent sometimes up to several days imprisoned, waiting to see a judge.^[FN1] Despite the unacceptable harm, unlawful trespassing arrests evidently continue. The defendant in this case seems to be a casualty of this dreadful practice.

The defendant stands charged under PL 140.15 (Criminal Trespass in the Second Degree) and PL 140.10(a) (Criminal Trespass in the Third Degree) and moves for dismissal pursuant to CPL 170.35, CPL 100.15 and CPL 100.40 on the ground that the accusatory instrument is facially insufficient.

The factual portion of the accusatory instrument reads:

Deponent states, upon information and belief, the source of which is the supporting deposition being filed with this instrument by PO THOMAS H DEKOKER ShieldNo. 15364 of [*2]the 46 PCT that at the above time and place informant observed the defendant in the above location, an apartment building, in the lobby and informant observed said dwelling to have conspicuously posted sign [sic] stating no trespassing and tenant and their guests only and CLEAN HALLS BUILDING and informant observed said location to also have locked entrance door (s).

Deponent is further informed by informant that defendant's residence address is 1770 TOWNSEND AVENUE, NEW YORK NY

Deponent is further informed by informant that defendant admitted he was not a resident of above location and gave no explanation for his presence in the building.

Informant has reviewed a notarized Clean Halls affidavit signed by SHAUN M. BELLE owner/managing agent of said location which is on file with the N.Y.C. Police Department. Said affidavit states that only tenants and their invited guests are permitted inside of the above dwelling. Further, said affidavit requests that the N.Y.C. Police Department enter and arrest any individual inside said dwelling who is not a tenant or invitee.

The supporting deposition referenced in the accusatory instrument contains the same basic information as the accusatory instrument: The defendant was in the lobby of a locked apartment building; signs reading "no trespassing" and "tenants and their guests only" were conspicuously posted; the defendant did not reside in the building; and the defendant gave no explanation for his presence in the building.

To be prosecuted under PL 140.15 and PL 140.10(a), a defendant must "knowingly enter or remain unlawfully" in a dwelling (PL 140.15) or in a building or enclosed real property (PL 140.10[a]).^[FN2] "A person enters or remains unlawfully' in or upon premises when he is not licensed or privileged to do so" (PL 140.00[5]).

Facial sufficiency standards in the context of Criminal Trespass were addressed by the Appellate Term, First Department in People v Quinones, 2002 NY Slip Op 50091(U), App Term, 1st Dept (March 5, 2002), leave to appeal denied 98 NY2d 680 (2002). As in the current case, the issue in Quinones was whether the defendant knowingly entered or remained unlawfully in a lobby of a building. The accusatory instrument stated that the defendant said he did not live in the building and was in the lobby to visit a "good friend." However, he was "unable to identify the friend's surname or apartment number." The court reversed the trial court's facial insufficiency dismissal and concluded that the allegations were sufficient to infer that the defendant's presence in the lobby was unlawful. The court wrote:

The misdemeanor complaint and supporting deposition sufficiently set forth the factual basis for the charge of criminal trespass in the second degree (Penal Law 140.15) by alleging, inter alia, that defendant was observed inside the lobby of a public housing apartment building equipped with a locked entrance door and "buzzer system"' that defendant admitted that he did not live in the building; and [*3]that defendant, although stating that he was in the building to visit his "good friend," was unable to identify the friend's surname or apartment number. These allegations were sufficient, for pleading purposes, to establish that the lobby area was part of the dwelling and was not open to the general public and that defendant knowingly entered or remained unlawfully therein (citations omitted). (Quinones, supra)

The facts in Quinones, however, differ from those in the current case. In Quinones, the defendant, in addition to admitting that he did not live in the building, gave flawed reasons for his presence, from which could be inferred that his presence was unlawful. In the current case, conversely, the defendant did not explain his presence in the building. There is no indication that he was asked to explain his presence in the building, no indication that he gave any reason to believe that his presence was unlawful, and no indication that he was anything other than an invitee to the building.

Often, as in People v Quinones, supra, an accusatory instrument charging Criminal Trespass will use a defendant's statement to establish the illegality of his or her presence. Such an accusatory instrument will allege that an officer asked the defendant to explain his or her presence, and that the defendant's response revealed information showing that his or her presence was unlawful (see People v Darling, 8 Misc 3d 127[A], Appellate Term, 1st Dept [2005]; People v Quinones, supra). The current accusatory instrument, however, does not state that the defendant was asked to provide an explanation for his presence and, more importantly, the accusatory instrument does not state that the defendant revealed information indicating that his presence was unlawful. Further, it must be noted, the defendant was under no obligation to provide an explanation for his presence (In re James C. 23 AD3d 262 [1st Dept, 2005]).

Although the Quinones court, in its facial sufficiency analysis, did not demand that the accusatory instrument preclude every possible scenario of innocence, the Quinones court did examine whether the allegations were sufficient, for pleading purposes, to establish the elements of the crime. This, of course, is indispensable for any facial sufficiency analysis (see CPL 100.40[1][b][c]).

It is well established that an accusatory instrument must contain facts of an evidentiary nature that support or tend to support the crimes charged (CPL 100.15[3]; People v Dumas, 68 NY2d 729 [1986]) and contain non-hearsay allegations that establish, if true, every element of the crimes charged (See CPL 100.40[1][b][c]). An accusatory instrument must establish reasonable cause to believe that the defendant committed the crimes charged (People v Dumas, supra). This is, of course, a lower standard than the "beyond a reasonable doubt" trial level standard (see People v Scott, 571 NY2d 248 [1988]).

In the current case, the accusatory instrument fails to address the lawfulness of the defendant's presence in the building. Perhaps the officers failed to investigate this issue, or perhaps they did investigate it and the People failed to assert it in the accusatory instrument. Nevertheless, the accusatory instrument does not show that the defendant's presence in the lobby was unlawful.

When this case appeared in arraignments on October 27, 2006, the court steered the People's attention to what the court believed was a problematic aspect of the accusatory [*4]instrument.^[FN3] The court informed the People: "It's not a crime to be in a lobby of a building that you don't live in. * * * The People will need a new accusatory instrument" (p. 5 of AR-2 transcript, dated October 27, 2006). Rather than dismiss the case at arraignments for facial insufficiency a drastic action to be used sparingly in part because such action is not appealable the court exercised its discretion in directing the People to file a new accusatory instrument, affording them an opportunity to investigate the viability of the case and an opportunity to rehabilitate the accusatory instrument. The People, however, failed to re-draft the accusatory instrument.

Consequently, this court is left with the same allegations that were presented at arraignments: 1) the defendant was in the lobby of a locked building in which he did not live; and 2) signs prohibiting trespassing were posted. These allegations are insufficient to show that the defendant was trespassing. The allegations do not establish the elements of the crimes charged, and they do not establish reasonable cause to believe that the defendant committed the crimes charged (see People v Dumas, supra).

The defendant was arrested on October 25, 2006, spent the night of October 25 in jail, spent the day of October 26 in jail, spent the night of October 26 in jail, and was not brought in front of a judge until October 27, 2006. This level of intrusion upon freedom is unacceptable, especially when it appears to be a result of an unlawful arrest.^[FN4]

One hopes the New York City Police Department will better train its officers in the realm of Criminal Trespass so that only true trespassers will be arrested, and innocents will be spared. Freedom from unlawful arrests is a pillar of any free society and must be ardently guarded. Our government must provide "meaningful protection from unfounded interference with liberty" (Gerstein v Pugh, 420 US 103 [1975]; see also 42 USC Sec. 1983).

In addition to moving for dismissal on facial sufficiency grounds, the defendant has moved for dismissal pursuant to CPL 30.30 on the ground that he has been denied his statutory right to a speedy trial. This issue is now moot.

Accordingly, the motion to dismiss for facial insufficiency is granted. This constitutes the decision and order of this court.

Dated:May 15, 2007______________________________

Bronx, New YorkA.J.S.C. [*5]