The defendant is charged with criminal trespass in the second degree (PL § 140.15), criminal trespass in the third degree (PL § 140.10 [e]), criminal possession of a controlled substance in the seventh degree (PL § 220.03), resisting arrest (PL § 205.30) and attempted tampering with physical evidence (PL § 110/215.40 [2]).

The defendant moves to dismiss the criminal trespass charges for facial insufficiency. He argues, inter alia, that the PL § 140.15 charge is insufficient because he is alleged to have trespassed in a New York City Housing Authority ("NYCHA") building. He contends that public housing buildings are beyond the purview of trespass in the second degree. The People oppose the motion. He also argues that the allegations are insufficient to support the PL § 140.10 [e] charge. For the reasons that follow, the motion is granted.

[*2]Discussion

To be sufficient on its face, a misdemeanor information must contain factual allegations of an evidentiary character demonstrating reasonable cause to believe the defendant committed the offenses charged (CPL §§ 100.15[3]; 100.40[1][b]; 70.10). These facts must be supported by non-hearsay allegations which, if true, establish every element of the offenses (CPL § 100.40[1][c]). An information which fails to satisfy these requirements is jurisdictionally defective (CPL § 170.30 and § 170.35; People v Alejandro, 70 NY2d 133 [1987]; People v Dumas, 68 NY2d 729 [1986]).

In reviewing an accusatory instrument for facial sufficiency, "[s]o 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 ...," the Court should give it "a fair and not overly restrictive or technical reading" (People v. Casey, 95 NY2d 354, 360 [2000]). At the pleading stage, all that is needed are factual allegations which are sufficiently evidentiary in character and tend to support the charges (People v Allen, 92 NY2d 378, 385 [1998]).

According to the accusatory instrument, Detective Rudy Lahens states that while on patrol outside of 264 10th Avenue, New York, New York (the "NYCHA building"), he observed the defendant inside the lobby of the dwelling beyond the vestibule. Detective Lahens further states that the defendant was not a tenant of the NYCHA building nor was he an invited guest of a resident of said building. Therefore, the defendant allegedly did not have permission or authority to be inside the NYCHA building.

Criminal trespass in the second degree

PL § 140.15 provides that "[a] person is guilty of criminal trespass in the second degree when he knowingly enters or remains unlawfully in a dwelling."

The defendant argues that the information is facially insufficient because an alleged trespasser in a housing authority building cannot be charged under Penal Law §140.15, but must instead be charged under Penal Law §140.10(e) or (f), based upon the legislative history of those sections. Defendant asks this Court to follow the decisions in People v. Carter (169 Misc 2d 230 [Crim Ct Kings Co 1996]), People v Gonzalez (4/4/01 NYLJ 21 [col 3] [Crim Ct NY County 2001]), People v. Brown (Doc. No. 2006NY003728, decision dated 2/10/06, J. Gesmer). In each of these cases, the courts held that the allegations of trespass into a housing authority building are appropriately charged under PL § 140.10 (e) or (f). The People argue that a NYCHA building is a dwelling within the meaning of PL § 140.15 and that this Court should follow People v. Scott, 8 Misc 3d 428 [Crim Ct NY Co 2005].

In 1992, the Legislature amended the criminal trespass statutes because at that time, they provided no protection to the residents of public housing projects against trespassers (Legislative Memorandum in Support, Bill Jacket, L 1992 c 434 p 8; see also Gonzalez, supra). The legislature specifically found that even though public housing buildings are dwellings as the term is ordinarily understood, because such buildings are "public property", trespass onto a NYCHA building did not fall within the ambit of PL § 140.15 (see Memorandum, S. 6993, Bill Jacket, L 1992 c 434 p 8). Therefore, the Legislature added two subsections to criminal trespass in the third degree, PL §§ 140.10 [e] and [f] to shore up this loophole (id; Carter, supra at 234). [*3]

PL § 140.10 provides in pertinent part:

A person is guilty of criminal trespass in the third degree when he knowingly enters or remains unlawfully in a building or upon real property

...

(e) where the building is used as a public housing project in violation of conspicuously posted rules and regulations governing entry and use thereof; or

(f) where a building is used as a public housing project in violation of a personally communicated request to leave the premises from a housing police officer or other person in charge thereof; ... .

It is axiomatic that "[i]n matters of statutory and regulatory interpretation... legislative intent is the great and controlling principle, and the proper judicial function is to discern and apply the will of the [enactors]. Generally, inquiry must be made of the spirit and purpose of the legislation, which requires examination of the statutory context of the provision as well as its legislative history' (Matter of ATM One v. Landaverde, 2 NY3d 472, 476-477 [2004] ) citing Mowczan v. Bacon, 92 NY2d 281, 285 [1998]). Even though the term "dwelling" is not inherently ambiguous, "the absence of ambiguity facially is never conclusive. Sound principles of statutory interpretation generally require examination of a statute's legislative history and context to determine its meaning and scope" (Uniformed Fire Fighters Ass'n, Local 94 v. Beekman, 52 NY2d 463, 471 [1981]).

In light of the legislative history leading to the passage of PL §§ 140.10 (e) and (f), this Court finds that where a defendant has allegedly trespassed in a public housing building, that defendant can only be charged under PL §§ 140.10 [e] or [f], as opposed to PL § 140.15. Therefore, this Court respectfully declines to adopt the opposite holding in People v. Scott, supra. As was noted by the court in Brown, the Scott Court failed to address the relevant legislative history.

Accordingly, the PL § 140.15 charge is hereby severed and dismissed.

Criminal trespass in the third degree

The PL § 140.15 [e] charge against the defendant also fails. A necessary element of this charge is a non-hearsay allegation that the defendant's entry into the NYCHA building was in violation of conspicuously posted rules and regulations governing entry and use thereof. Since the accusatory instrument is devoid of any factual allegations indicating that rules and regulations governing entry and use of the NYCHA building were conspicuously posted, the PL § 140.15 [e] charge is severed and dismissed as well.

Conclusion

In accordance herewith, it is hereby:

ORDERED that the defendant's motion to dismiss counts one and two of the accusatory instrument, PL §§ 140.15 and 140.10 [e] is granted; and it is further

ORDERED that counts one and two of the accusatory instrument, PL §§ 140.15 [*4]and 140.10 [e], are hereby severed and dismissed; and it is further

ORDERED that the People have leave to re-file the charges in accordance with this decision and consistent with CPL §§ 30.30 and 170.30.

Requests for relief not expressly addressed herein have nonetheless been considered by the Court and are hereby expressly denied.

This constitutes the decision and order of the Court.

Dated: March 15, 2011

New York, New YorkSo Ordered:

______________________

Hon. Lynn R. Kotler, J.C.C.