The defendant, Luis Taveras, is charged with one count of Criminal Possession of a Controlled Substance in the Seventh Degree (Penal Law 220.03), one count of Criminal Possession of a Forged Instrument in the Third Degree (PL 170.20), and one count of Criminal Trespass in the Second Degree (PL 140.15). The defendant has filed a motion seeking the following: (1) dismissal on speedy trial grounds under CPL 30.30; (2) dismissal for facial insufficiency; (3) discovery; and (4) an extension of time for filing motions should new information come to light as a result of defendant's discovery request. The motion is decided as follows.

It is well-settled pursuant to CPL 30.30(1)(b) that the People must be ready for trial within ninety days of commencement of a criminal action charging a defendant with [*2]a class A misdemeanor. Whether the People have satisfied this obligation is generally determined by calculating the time between the filing of the first accusatory instrument and the People's declaration of readiness, then subtracting statutorily excludable periods of delay and finally adding any additional delays that transpire after readiness has been declared, when such delays are attributable to the People and are ineligible for any exclusions under the statute (see People v Cortes, 80 NY2d 201, 208, [1992]).

Defendant argues that more than ninety days have elapsed since defendant's arrest on February 4, 2007, and that therefore, the charges against him should be dismissed. However, defendant fails to acknowledge the People's certificate of readiness, filed with the Court on April 2, 2007, to which is attached a laboratory report attesting to the fact that the substance recovered from defendant was cocaine. The Court of Appeals has held that when some but not all of the charges in an accusatory instrument are corroborated, the accusatory instrument satisfies the requirements of an information and may be the basis of a criminal action (see People ex rel Ortiz, 93 NY2d 959, [1999]). Thus, as to the charge under PL 220.03, the People were ready as of April 2, 2007, well in advance of their statutory deadline.

Defendant also fails to exclude periods not chargeable to the People in calculating the total time. The forty-five days between the arraignment on February 4, 2007, and the first adjournment, March 21, 2007, are chargeable to the People, as they were not ready and the adjournment was granted upon their request. The following sixty-one days, between March 21, 2007, and May 21, 2007, are only partially chargeable to the People, because they filed a certificate of readiness on April 2, 2007, which resulted in a total of only twelve additional days chargeable to the People (see People v Smith, 82 NY2d 676 [1993]). The remaining time periods, between May 21, 2007 and July 23, 2007, and between July 23, 2007 and September 18, 2007, are both excludable. The time between May 21, 2007 and July 23, 2007 is excludable because defendant's counsel submitted an affirmation of actual engagement to the court on or about May 21, 2007 requesting an adjournment because he was actually engaged on another matter elsewhere, and he did not appear on May 21, 2007. Thus, the adjournment was granted at defendant's request and is not chargeable to the People (see People v Cambridge, 230 AD2d 649, [1st Dept 1996]; see also People v Lassiter, 240 AD2d 293 [1st Dept 1997]). The time between July 24, 2007 and September 18, 2007, is also excludable, inasmuch as defendant sought an adjournment to make motions and the court set a motion schedule (see People v Brown, 195 AD2d 310 [1993]). Additionally, although defendant does not complain about the last adjournment on record, September 18, 2007 to October 25, 2007, it is also excludable, due to the Court's own adjournment for the People's response and the Court's decision (see People v Anderson, 252 AD2d 399 [1st Dept 1998], lv denied 92 NY2d 1027). Thus, the grand total of time chargeable to the People remains at sixty-seven days, and therefore, defendant's right to a speedy trial has not been violated.

While the requirement of nonhearsay allegations has been described as a "much more demanding standard" than a showing of reasonable cause alone (People v Alejandro, 70 NY2d at 138, quoting 1968 Report of Temp Comm on Rev of Penal Law and Crim Code, Intro Comments), it is nevertheless a much lower threshold than the burden of proof beyond a reasonable doubt at trial (People v Henderson, 92 NY2d 677, 680 [1999]; People v Hyde, 302 AD2d 101, [1st Dept 2003]). Thus, "[t]he law does not require that the information contain the most precise words or phrases most clearly expressing the charge, only that the crime and the factual basis therefor be sufficiently alleged" (People v Sylla, 7 Misc 3d 8, 10 [2d Dept 2005]). Additionally, where the factual allegations contained in an information "give an accused sufficient notice 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, 390 [2000]; see also People v. Konieczny, 2 NY3d 569 [2004]; People v Jacoby, 304 NY 33, 38-40 [1952]; People v Knapp, 152 Misc 368, 370 [1934], affd 242 App Div 811; People v Shea, 68 Misc 2d 271, 272 [1971]; People v Allen, 92 NY2d 378, 385 [1998]; People v Miles, 64 NY2d 731, 732-733 [1984]).

The factual portion of the accusatory instrument presently before the Court consists of a deposition from the arresting officer, along with a document titled "Managing Agent's Affidavit".^[FN1] Regarding the trespass charge, the arresting officer alleges, in sum, that defendant was observed in the lobby of a residential apartment building, in a location beyond both the vestibule and a posted sign bearing the words "No Trespassing" and "Tenants and Their Guests Only." The officer further alleges that defendant's home address (as provided by defendant) was an address other than where he was observed, and he was unable to name any tenant by whom he had been invited into the premises.

Defendant argues that the complaint is facially insufficient because the Managing Agent's affidavit is expired and was not in effect when defendant was arrested. The affidavit is dated May 4, 2006, and states that the affidavit remains in effect for four months from the date it was signed.

Defendant's argument apparently rests on the unspoken assumption that an affidavit from a managing agent or building owner is necessary prerequisite for [*4]conversion of a trespass complaint into a facially sufficient information, because such an affidavit provides nonhearsay allegations establishing the element of unlawful entry as defined by a defendant's absence of license or privilege to be in the building. "In general, a person is licensed or privileged' to enter private premises when he has obtained the consent of the owner or another whose relationship to the premises gives him authority to issue such consent" (People v Graves, 76 NY2d 16, 20 [1990]). When such license or privilege is absent, a person is generally presumed to have entered or remained unlawfully (see People v Brown, 25 NY2d 374 [1975]).

However, this Court does not agree that affidavits from building owners or managers are always necessary to convert complaints into informations when trespass in a dwelling is alleged, for several reasons. First, the Penal Law does not explicitly require the filing of affidavits from building owners or managers, nor is there controlling case law to that effect. The Penal Law designates four levels of trespass, ranging from a violation to a D felony, none of which explicitly include a building owner's or manager's affidavit as a requirement. Moreover, it is clear from reading the trespass statute as a whole that trespass in a dwelling is not predicated upon a personally communicated directive from an owner or authorized agent thereof to refrain from trespassing or to depart from an area, regardless of how such directive is communicated. Penal Law 140.15 states that "[a] person is guilty of criminal trespass in the second degree when he knowingly enters or remains unlawfully in a dwelling," and Penal Law 140.00(3) defines a "dwelling" as "a building which is usually occupied by a person lodging therein at night." Trespass in a dwelling, where a person lodges at night, is so serious an offense against another person and against essential boundaries of privacy and safety, that the Legislature did not include communication of a directive to refrain or departas a requirement for second degree trespass. Communication of lawful orders or conspicuously posted "no trespassing" signs are only required for lesser trespass offenses (see PL 140.10[c], [d] and [f]);PL 140.05; PL 140.10 [b], [e] and [g]).

Additionally, in considering the trespass statute as a whole, it is clear that the Legislature recognizes that trespass in a dwelling is more serious than unauthorized entry in other types of places, such as real estate or buildings that are not dwellings but are fenced (PL 140.10[a]), schools (PL 140.10[b]-[d]), public housing projects (PL 140.10[e]-[f]), or railroad yards (PL 140.10[g]), which are all B misdemeanors. Trespassing in a dwelling is also more serious than unauthorized entry into public areas in defiance of a personally communicated and lawful order to refrain or depart (PL 140.05; PL 140.00[5]), which is only a violation. The only trespass worse than that which takes place in a dwelling is trespass undertaken with the means to kill another person; the highest level of trespass, PL 140.17, includes use or possession of an explosive, firearm or deadly weapon while trespassing and trespass in a dwelling is second only to this serious aggravating circumstance.

It is clear that common hallways and lobbies of residential buildings with multiple units are "dwellings" within the meaning of the statute, and that as such, they are inherently and undeniably private. Structures that have been considered dwellings and therefore not open to the public include apartment building lobbies that are locked and have intercoms (see People v Torres, 162 AD2d 385 [1st Dept 1990]; see also People v [*5]Lawlor, 219 AD2d 528 [1st Dept 1995]); apartment building hallways that are locked and have intercoms (see People v Torres, 162 AD2d 385 [1st Dept 1990]; see also People v Maissonet, 304 AD2d 674 [2d Dept 2003]; see also People v Ivory, 99 AD2d 154 [3d Dept 1984]); attached garages (see People v Monge, 248 AD2d 558 [2d Dept 1998]; see also People v Stephenson, 116 AD2d 756 [2d Dept 1986]); a garage beneath a house without an interconnecting door (see People v Green, 141 AD2d 760 [2d Dept 1988]); an unoccupied doctor's office attached to a residential building (see People v Rohena, 186 AD2d 509 [1st Dept 1992]); a bar with an attached apartment (see People v Cuozzo, 199 AD2d 966 [4th Dept 1993]); a private hospital room (see People v Shackett, 159 AD2d 963 [4th Dept 1990]); and even a house of prostitution and massage parlor (see People v Wright, 157 AD2d 534 [1st Dept 1990]).

By contrast, an airport (see People v Nunez, 106 Misc 2d 236 [Crim Ct Queens County 1980]), a bus terminal (see People v Velasquez, 77 Misc 2d 749 [Crim Ct NY County 1974]), an insurance broker's office (see People v Brown, 25 NY2d 374 [1969]), a migrant labor camp (see People v Rewald, 65 Misc 2d 453 [Crim Ct Cayuga County 1971]), a motor inn (see People v Letko, 60 AD2d 661 [3d Dept 1977, rev'd on other grounds, 47 NY2d 257 [1979]), portions of a synagogue (see People v Tuchinsky, 100 Misc 2d 521 [Dist Ct, Suffolk County 1979]), a welfare office (see People v Wolf, 63 Misc 2d 178 [Dist Ct Suffolk County 1970]) and a building with job applicants' invitation sign on the exterior (see People v Jones, 50 AD2d 750 [1st Dept 1975]) have all been held to be open to the public. Thus, the relevant portion of Penal Law 140.00(5) (addressing the withdrawal of license and privilege once a personally communicated lawful order directs a person to keep out of, or depart from, an area that is otherwise open to the public) is inapplicable to common apartment lobbies and hallways, precisely because they are private dwellings and not open to the public. An affidavit from a building owner or manager attesting to the existence of a no trespassing' sign in a lobby or hallway is therefore not required at the pleading stage to establish lack of license or privilege to be in a dwelling.

Further, building owners' or managers' affidavits cannot be a necessary prerequisite for conversion of a trespass complaint into an information because the purpose of filing such affidavits with police precincts is neither to put potential trespassers on notice that they do not have license or privilege, nor to provide proof for potential prosecutions that an owner or authorized person gives license only to tenants and their guests. Rather, the general purpose behind filing such affidavits with local police precincts is to request police patrols in the common areas of privately owned apartment buildings that are experiencing drug-related crime problems, including trespass (see People v Roque, 99 NY2d 50 [2002]; see also People v Olmo, 2003 NY Slip OP 51721 [U] [Crim Ct, NY County]; see also People v Outlar, 177 Misc 2d 620 [Crim Ct, NY County, 1998]).^[FN2] There is simply no basis in law or in logic for deviating [*6]from the original purpose of such an affidavit by expanding its use to encompass evidentiary support for criminal pleadings. In this instance, the building manager's affidavit, even if it were not expired, does not amplify the pleadings or enhance the factual allegations whatsoever, nor does it provide a missing element; it simply states that the police have been asked to patrol the building due to drug-related activity therein, and that a "no trespassing" sign is posted in the building (which sign is already described in the arresting officer's deposition). Thus, the manager's affidavit does not provide nonhearsay factual allegations concerning defendant's lack of license or privilege in this case.

Moreover, the element of unlawful entry may be reasonably inferred from the factual allegations, and requires no additional support. In many instances, accusatory instruments based on hearsay can only be converted into informations by the filing of supporting depositions, because such supporting depositions from sources other than the arresting officer are the only way to establish nonhearsay allegations as to an essential element of the crime charged. Some essential elements cannot be inferred or proven circumstantially, such as the operability of firearms (see People v Saunders, 85 NY2d 339 [1995]) or the chemical composition of alleged controlled substances (see People v Swamp, 84 NY2d 725 [1995]). However, many elements of offenses may be inferred or proven circumstantially, not just at the pleading stage, but even at trial. For example, a defendant's knowledge or intent may demonstrated through circumstantial evidence and the inferences that are reasonably drawn therefrom in many different types of cases (see People v Walker, 166 Ad2d 911 [4th Dept 1990])(defendant's knowledge that property was stolen inferred from recent and exclusive possession of property and defendant's contradictory statements to theft victims); (see also People v Agron, 10 NY2d 130 [1961])(intent to kill inferred from nature and circumstances of violent act, weapon used and part of victim's body assaulted) .

In this instance, controlling precedent indicates that the element of unlawful entry in the absence of license or privilege may be proven circumstantially. Factual allegations have been found to establish, for pleading purposes, that a defendant knowingly entered or remained unlawfully in a dwelling when such allegations include a defendant's presence within a lobby that is not open to the public and beyond a locked entrance door with a buzzer system, when the defendant is unable to state the name or apartment number of the tenant by whom they were invited (see People v Quinones, 2007 NY Slip Op 51292 [U] [App Term, 1st Dept 2002]). Similarly, an information charging a defendant with trespass has been found to be facially sufficient when the factual allegations indicate that defendant stood in a courtyard of a residential building beyond a "no trespassing" sign and lied to police about his sister's residence within building (see People v Barbarich, 166 Ad2d 655 [2d Dept 1990]).

An absence of license or privilege has also been found when, while in the lobby of a dwelling with a posted "no trespassing" sign, a defendant was unable to name the resident by whom he had been invited and conceded that he resided elsewhere (see People v Easton, 2007 NY Slip Op 51292 [U], [Crim Ct, NY County]); and, while in the stairwell of a public housing project beyond a "no trespassing" sign, defendant stated he did not live there and was not visiting anyone in the building (see People v Maas, 2005 [*7]NY Slip Op 51872 [U], [Crim Ct, NY County]). An absence of license or privilege has even been found under circumstances where a building's entrance door was unlocked (see People v Scott, 8 Misc 3d 428 [Crim Ct, NY County, 2005]). In the case presently before the Court, an affidavit from a building owner or manager is not required because an absence of license or privilege can be reasonably inferred from the factual allegations.

The accusatory instrument presently challenged includes factual allegations that are so close as to be virtually indistinguishable fromthe allegations in Quinones and Barbarich, supra. The trespass charge in this accusatory instrument is facially sufficient even without a supporting sworn statement from the building owner or manager, because the nonhearsay factual allegations in the complaint, if taken as true, establish that the defendant entered and remained unlawfully in a dwelling. The building was identified by the deponent officer as an apartment building where people reside. Moreover, defendant was observed in the lobby, beyond the vestibule and past a posted "no trespassing" sign. Defendant's lack of license or privilege to be inside the dwelling is implicit in his admission to the deponent officer that his own residence was elsewhere and that he knew no one in the building.

Requiring a signed and sworn statement from a building owner or manager before a trespass complaint will be deemed an information is not only contrary to case law, it is contrary to common sense. When a person steps off of a sidewalk and into a residential building, he or she crosses both a physical threshold and a conceptual one, moving from the outdoor, public sphere to an interior, private sanctuary. A signed and sworn statement from a building's owner or manager does not enhance the distinction between public and private space, nor does the absence of such a statement diminish it; simply put, a piece of paper disclosed to a defendant only at or after arraignment does not impact upon the basic, commonsense, everyday experience of the difference between public space and private space. Accordingly, such an affidavit is neither the best nor the only means by which a pleading might sufficiently allege that a defendant did not have a legal right to be in a lobby, hallway or stairwell.

It does not matter that lobbies, hallways and stairwells are shared by tenants and others whom they may invite or welcome from time to time; establishing a common private space that is shared by some does not imply that it is therefore shared with all. Many hallways and lobbies display clear indicia that the space is private, above and beyond a locked entrance door, intercom system, or "no trespassing" sign. Storage of shoes, baby strollers, umbrellas, athletic and recreational equipment and other personal items in hallways, as well seasonal and holiday decorations in lobbies, serve to demonstrate that a building's lobby and hallways have a level of privacy, which, even though they are not as truly intimate as the inside of someone's individually rented or owned apartment, are nevertheless private in way that sidewalks and streets are not.

Requiring a signed and sworn statement from a building owner or manager to support trespass informations would also be contrary to public policy. More than half of all New York City residents live in apartment buildings and they are entitled to the same level of safety and security in their homes as those who reside in single-family houses. "The residents of an apartment building...are entitled to expect that common areas of their homes are open only to people with a legitimate reason for entering" (People v [*8]Scott, 8 Misc 3d 428, 430 [Crim Ct, NY County, 2005]), and they should not have to "navigate through a gang of people hanging out' or sleeping in their lobbies to reach the doors of their apartments" (id. at 431). The safety and security of apartment dwellers should not and does not depend upon whether or not their buildings' owners or managers filed affidavits with the local police precinct.

In conclusion, the Court finds that the presently challenged trespassing charge is facially sufficient, inasmuch as it substantially conforms to the statutorily prescribed form and content and contains allegations in the factual portion that provide reasonable cause to believe defendant did not have license or privilege to be in the premises where he was arrested, and that he did trespass upon the dwelling of another.

Any other relief sought by defendant which is not specifically granted herein is denied.

This constitutes the decision and order of the Court.

Dated:October 24, 2007

New York, New York

_________________________

Elisa S. Koenderman, JCC