Charged by information with criminal trespass in the second degree, defendant moves to dismiss the accusatory instrument for facial insufficiency, contending that the sworn allegations fail to establish that his presence in the subject premises was unlawful.^[FN1]

The arresting officer alleges that while on patrol inside an identified apartment building operated by the New York City Housing Authority, he observed defendant inside the lobby of the building, beyond the vestibule and beyond a posted "No Trespassing" sign. The officer further alleges that "defendant [was] not a tenant in that [he] provided an address different from the above location[,] and . . . [was] not an invited guest in that [he] was unable to provide the identity of a resident of whom defendant was an invited guest."

In order to be sufficient on its face, an information must provide reasonable cause to believe that the defendant has committed the crime charged and contain nonhearsay allegations that, if true, establish every element of the crime and its commission by the defendant (see CPL 100.40 [1] [b], [c]).^[FN2] "A person is guilty of criminal trespass in the second degree when he knowingly enters or remains unlawfully in a dwelling" (Penal Law § 140.15). An entry or remaining is unlawful when a person "is not licensed or privileged" to be in or upon the premises (Penal Law § 140.00 [5]). The lack of license or privilege may be proved by circumstantial evidence (see People v Quinones, 173 AD2d 395, 396 [1st Dept 1991]).

Inasmuch as residents of a multi-unit apartment building and their invited guests plainly have license or privilege to travel through the building's common areas, a charge of trespass based on presence in the building's lobby cannot survive in the absence of evidence that the [*2]defendant was neither a resident nor an invitee. Although defendant does not dispute that the allegation that he provided a residence address different from that of the building in which he was found suffices to establish that he was not a resident, he contends that the allegation that he was "unable to provide the identity of a resident of whom [he] was an invited guest" fails to provide reasonable cause to believe that he was not an invitee.^[FN3]

Defendant argues that the word "unable" is ambiguous, and could mean simply that he refused to divulge the identity of the person he was visiting, or, even more basically, that he just did not provide that identity to the police. To be sure, if the information alleged merely that defendant failed to offer any legitimate explanation for his presence in the building, the charge of trespass could not be sustained, since a person has a constitutional right not to respond to questions posed by the police, and the "refusal to answer is not a crime" (People v Howard, 50 NY2d 583, 586 [1980]). Further, a failure to cooperate by identifying oneself or answering questions cannot "be the predicate for an arrest absent other circumstances constituting probable cause" (id. at 591-592).^[FN4] Accordingly, evidence that a defendant, when approached by police in the lobby of an apartment building, advised the officer that he did not live in the building and was just "hanging out," is legally insufficient to establish criminal trespass (see Matter of Daniel B., 2 AD3d 440 [2d Dept 2003]). For as the court observed, although the accused "did not offer an explanation for his presence, it was not his obligation to do so" (Daniel B., 2 AD3d at 441; see also Matter of James C., 23 AD3d 262, 264 [1st Dept 2005]).

But "unable" means more than "didn't do so"; it means incapable. Thus, the fairest reading of the accusatory instrument is not that defendant merely declined to identify the person he was visiting, but rather that he either admitted to knowing no one in the building, or offered up an explanation that was then determined by the arresting officer to be untrue ^[FN5] — for example, because the apartment he said he had been visiting turned out to be vacant; or no such apartment [*3]number existed; or no one with the name defendant provided was living in the specified apartment (see People v Darling, 8 Misc 3d 127[A], 2005 NY Slip Op 50953[U] [App Term, 1st Dept 2005]); or the residents of the identified apartment indicated that they did not know defendant (see People v Mercado, 294 AD2d 132, 133 [1st Dept 2002]).^[FN6] "So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 [2000]).

Accordingly, the allegation that defendant was "unable" to provide the identity of any resident of whom he was an invited guest, coupled with his concession that he resided elsewhere, provides reasonable cause to believe that his entry into the apartment building was unlawful (cf. People v Quinones, 2002 NY Slip Op 50091[U], *2 [App Term, 1st Dept 2002] [defendant, observed inside the lobby of a public housing apartment building equipped with a locked entrance door and buzzer system, admitted that he did not live in the building and, "although stating that he was in the building to visit his good friend,' was unable to identify the friend's surname or apartment number"; allegations sufficient, for pleading purposes, to establish that defendant knowingly entered or remained unlawfully (emphasis added)]).