The defendant, David Richardson, is charged by Information with Criminal Trespass in the Second and Third Degrees in violation of PL §§ 140.15 and 140.01(e) respectively. The following facts are alleged in the Information:

Deponent [Officer Ioannis Kyrkos] states that on December 19, 2010, at 6:00 p.m., inside of 705 East 5th Street [a New York City Housing Authority Building], in the County and State of New [*2]York, while on patrol inside the above location, an apartment building where people reside, deponent observed the defendant [and co-defendant Shawn Riddick] inside the lobby of the dwelling beyond the vestibule and that said location is beyond a posted sign which read, "No Trespassing".

Deponent further states that the defendant [and co-defendant Shawn Riddick] are not tenants in that defendant [and co-defendant Riddick] provided addresses different from the above location and defendants are not invited guests in that the defendant [and co-defendant Riddick] were unable to provide the identity of a resident of whom defendant [and co-defendant Riddick] were invited guests.

Deponent determined that defendant [and co-defendant Riddick] did not have permission or authority to be inside the dwelling based on Information and belief the source of which is as follows: deponent observed the defendant [and co-defendant Riddick] trespass inside a Housing Authority Building.

Deponent is a member of the New York Police Department and as such is an agent of this dwelling and the defendant [and co-defendant Riddick] did not have permission or authority to enter or remain in the area in which the defendants were found.

Defendant Richardson now moves to dismiss the instant Information as facially insufficient pursuant to Criminal Procedure Law (CPL) §§ 170.30 (1)(a) and 170.35. Specifically, defendant posits that public housing buildings, even if dwellings, are beyond the purview of the Trespass in the Second Degree statute. Rather, defendant urges, the applicable charge is Trespass in the Third Degree pursuant to PL § 140.10(e) in light of the allegation that defendant was in the lobby of a New York City Housing Authority (hereinafter NYCHA) building as opposed to the individual apartment of one of the building residents. Moreover, defendant argues, that while applicable to the allegations contained in the Information, the Trespass in the Third Degree count is also facially insufficient as the pleadings fail to establish a prima facie case that defendant was not an invited guest. Conversely, the People contend that the facts alleged in the accusatory instrument establish reasonable cause to believe defendant committed the offenses charged. For the reasons stated herein, the defendant's motion to dismiss on ground of facial insufficiency is denied in its entirety.

ANALYSIS:

To be sufficient on its face, a misdemeanor Information must contain non-hearsay factual allegations providing reasonable cause to believe that the defendant committed the offense(s) charged; and which establish, if true, every element of the offense(s) charged (CPL §§ 100.15[3]; 100.40[1][b] and [c]. The reasonable cause standard is met by allegations of an evidentiary nature that disclose facts or circumstances which, collectively, bear such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense(s) was committed and that defendant committed it (CPL § 70.10[2]). An Information which fails to satisfy this prima facie case requirement is jurisdictionally defective. (CPL §§ 170.30 and 170.35; People v. Kalin, 12 NY3d 225878 N.Y.S.2d 653 [2009]; People v. Alejandro, 70 NY2d 133 [1987]; People v. Dumas, 68 NY3d 729 [1986]).

[*3]This court recognizes that a prima facie case requirement is not the same as the burden of proof, beyond a reasonable doubt, required at trial. People v. Henderson, 92 NY2d 677, 680 (1999).In reviewing an accusatory instrument for facial insufficiency, "[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, [it] should be given a fair and not overly restrictive or technical reading." People v. Casey, 95 NY2d 354, 360 (2000). Moreover, the Court of Appeals, in People v. Allen (99 NY2d 378, 385 [1998]), held that at the pleading stage, all that is required are factual allegations that are sufficiently evidentiary in character and which tend to support the charges. In assessing the facial sufficiency of an accusatory instrument, the court must view the facts in the light most favorableto the People. However, the court is not required to abandon common sense or the significance of the alleged conduct. See People v. Gibble, 2 Misc 3d 510, 512 (Crim Ct., NY County 2003).

Trespass in the Second Degree (PL § 140.15) applies to any multi-unit apartment

building, whether privately or publicly owned, provided the building meets

the statutory definition of a "dwelling" under PL 140.00(3).

A person is guilty of Criminal Trespass in the Second Degree, a Class A misdemeanor, in violation of PL § 140.15 when he knowingly enters or remains unlawfully in a dwelling. See PL § 140.15. A person is guilty of Criminal Trespass in the Third Degree, a Class B misdemeanor, in violation of PL § 140.10(e) when he knowingly enters or remains unlawfully in a building where the building is used as a public housing project in violation of conspicuously posted rules or regulations governing entry and use thereof. See PL § 140.10(e). Hence, whether the applicable charge is Trespass in the Second Degree, Third Degree, and/or both necessarily turns on the type of structure allegedly entered as defined by the statute; a "dwelling" or a "building".

The Trespass statute provides a clear definition of the statutory terms relative to such offenses. Penal Law § 140.00(2) states, in relevant part, that in addition to its ordinary meaning, a "building" includes any structure used for overnight lodging of persons; including vehicles and/or watercraft if used for this purpose. Where a building consists of two or more units separately secured or occupied, each unit shall be deemed both a separate building in itself and a part of the main building. See PL § 140.00(2). Penal Law § 140.00(3) defines "dwelling" as a building which is usually occupied by a person lodging therein at night. Clearly a NYCHA residential apartment building which is occupied daily by person[s] lodging therein at night constitutes both a "building" and a "dwelling" as those terms are defined by the statute.

Following defendant's argument to its logical conclusion, defendant posits that whereas here, a residential apartment building is owned by a public entity rather than a private entity, the "general public" enjoys unfettered access to all areas within such building whether they reside there or not; including the lobby, stairways, and hallways of NYCHA buildings, which defendant claims are "open to the public." However, this argument contravenes the very legislative intent, as advanced by defendant, of the Trespass in the Third Degree statute upon which defendant relies; to wit, the public safety of NYCHA building residents.

Courts have consistently held that the common hallways, lobbies, and stairwells of residential buildings are dwellings within the meaning of the statute, and as such, these areas are inherently and undeniably private common areas not open to the general public. See People v. Taveras, 17 Misc 3d 1119(A), 2007 NY Slip Op 52067(U), 851 NYS2d 73 (Crim Ct. NY County [*4]2007); see also People v. Torres, 162 AD2d 385, 556 N.Y.S.2d 920 (1st Dep't 1990)(locked apartment building lobbies, not open to the public, meet statutory definition of dwelling); People v. Lawlor,219 AD2d 528, 631 N.Y.S.2d 676 (1st Dep't 1995)(apartment building hallway with locks and intercom determined to be a dwelling); see also People v. Maissonet, 304 AD2d 674 (2d Dep't 2003); People v. Ivory, 99 AD2d 154, 473 N.Y.S.2d 28 (3d Dep't 1984); People v. Monge, 248 AD2d 558, 670 N.Y.S.2d 200 (1998); People v. Stephenson, 116 AD2d 756 (2d Dep't 1986); People v. Green, 141 AD2d 760, 529 N.Y.S.2d 852 (2d dep't 1988)(a garage beneath a house without and interconnecting door deemed a dwelling). Specifically, in Taveras, the court reasoned that, in the context of the trespass statute, it does not matter that lobbies, hallways. and stairwells are shared by tenants and their invited guests; for merely establishing a common private space that is shared by some does not imply that such space is therefore shared by all. Id.

Accordingly, this court finds that the pleadings establish, prima facie, that defendant entered a dwelling wherein it is alleged that he was in the lobby of a NYCHA residential apartment building, beyond the vestibule area, and beyond a posted sign which read "No Trespassing." See People v. Rodriguez, 159 AD2d 201, 552 N.Y.S.2d 13 (1990), lv den'd, 76 NY2d 742 (1990); People v. Eastmon, 19 Misc 3d 824, 855 N.Y.S.2d 353 (Crim Ct. NY County 2008); People v. Quinones, 2007 Slip Op 50091 (U) (App Term, 1st Dep't 2002); People v. Delossantos, 32 Misc 3d 865, 924 N.Y.S.2d 258 (Crim Ct. NY County 2011); People v. Scott et al, 8 Misc 3d 428, 797 N.Y.S.2d 847 (Crim Ct. NY County 2005); People v. Nichson, 32 Misc 3d 1224(A), 936 N.Y.S.2d 60 (Crim Ct. NY County 2011).

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Michelle A. Armstrong, J.C.C.