[*1]
| People v Babyak |
| 2013 NY Slip Op 50115(U) [38 Misc 3d 1216(A)] |
| Decided on January 23, 2013 |
| Just Ct, Vil Of Hempstead, Nassau County |
| Hobson-Williams, J. |
| Published by New York State Law Reporting
Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be
published in the printed Official Reports. |
Just Ct, Vil of Hempstead, Nassau County
People,
against
John Babyak, Defendant.
|
29334
For the People: Jacqueline Zore-Smrek
For the Defendant: John J. Broderick, Esq.
Tanya Hobson-Williams, J.
On April 21, 2012, the Defendant was issued Violation number
AT29334-12 for Trespassing in violation of Hempstead Village Code §95-17 at the
property located at 554 Fulton Avenue, Hempstead, New York. On July 11, 2012, a trial
of the matter was conducted.
At trial, the Defendant testified that he was standing at a fence located at 540
Fulton Avenue, which is an apartment complex next to Planned Parenthood. Defendant
avers that he was not on Planned Parenthood's property. The Defendant stated that he
was standing at the fence on the apartment complex property for the purpose of
protesting people entering and leaving Planned Parenthood which was located next to the
apartment complex. The Defendant was engaging in free speech activity.
The Defendant stated that he was never advised by anyone that he could not
enter the apartment complex property. Defendant further stated that the apartment
complex did not have "No Trespassing" signs and no one advised him that they were
annoyed by his presence. The Defendant then stated that he left the property when the
police officer told him to leave.
The police officer who issued the Trespass ticket to the Defendant testified
that he heard the Defendant yell, "They kill babies", prior to approaching the Defendant.
The police officer was in the parking lot of Planned Parenthood and met the Defendant at
a fence separating Planned Parenthood from the apartment complex. The police officer
stated that he asked the Defendant why he was on private property and whether he knew
anyone living in the apartment complex. The police officer testified that the Defendant
responded that he was on the property to get closer to Planned Parenthood and that he
did not know anyone in the building. The police officer then issued the Defendant a
summons for violating Hempstead Village Code section 95-17, for Trespassing. The
police officer then asked the Defendant to leave the property and the Defendant
complied.
DISCUSSION
The People
argued that the Defendant had no legitimate purpose for being on the apartment complex
property because there was a fence on the property where the Defendant was standing.
They also argued that the Defendant did not have permission from the property owner to
be on the property.
Hempstead Village Code section 95-17, states, "It shall be unlawful for any
person to enter or remain without authority upon any public or private property." The
Hempstead Village Code does [*2]not define the term,
"to enter or remain without authority". The Hempstead Village Code also prohibits
entering and remaining on "public property" without authority which is not clarified,
defined or limited in scope or application anywhere in the Village Code.
However, New York State Penal Law section 140.00 defines a similar
phrase, "enter or remain unlawfully". New York State Penal Law 140.00(5) states that a
person who "enters or remains in or upon premises which are at the time open to the
public does so with license and privilege unless he defies a lawful order not to enter or
remain, personally communicated to him by the owner of such premises or other
authorized person." Although the Hempstead Village Law is not a penal law, an analysis
of the New York State Penal Law definition can assist in determining whether or not the
Defendant has committed a Trespass under the Hempstead Village Code.
Since the Hempstead Village Code not only proscribes trespassing on private
property but also proscribes trespassing on public property without limitation or
clarification, this Court finds that a person who enters or remains on public property in
the Village of Hempstead does so with license and privilege unless the person defies a
lawful order not to enter or remain, personally communicated to him by the owner of
such premises or other authorized person. This finding is consistent with a long line of
case law on the topic.
For example, in People v. Leonard, 62 NY2d 404, 477 N.Y.S.2d 111, 465
N.E.2d 831 (1984), the New York Court of Appeals overturned a conviction for trespass
against a former SUNY student who had been issued a persona non grata two
years prior due to his behavior on campus. The Court of Appeals held that, "When the
property is "open to the public" at the time of the alleged trespass, the accused is
presumed to have a license and privilege to be present."
All people "have a license and privilege to be present in areas of buildings or
real property open to the public. See People v. Outlar, 177 Misc 2d 620, 677 N.Y.S.2d
430 (N.Y.C.Crim.Ct. 1998) and the People have the burden of proving that the
Defendant lacked a license or privilege to enter the subject premises. People v. Brown,
306 N.Y.S.2d 449 (1969). An apartment complex has been deemed to be a place open to
the public unless there are signs to the contrary and common areas of a multiple dwelling
unit building is presumptively a public place. People v. Powell, 54 NY2d 524,
531, 446 N.Y.S.2d 232, 430 N.E.2d 1285 (1981). Also, hallways of multiple dwellings
have been considered public places within the trespass statutes. People v.
Beltrand, 63 Misc 2d 1041, 1047, 314 N.Y.S.2d 276 (Crim.Ct.N.Y.Co.1970), aff'd,
67 Misc 2d 324, 324 N.Y.S.2d 477 (App. Term 1st Dep't 1971).
In trespass cases, the People have the burden of proving that (1) a lawful
order excluding the defendant from the premises issued, (2) that the order was
communicated to the defendant by a person with authority to make the order, and (3) that
the defendant defied that order. People v. Leonard, 62 NY2d at 408. In People v.
Leonard, the New York Court of Appeals recognized that the school administrators had
broad power to maintain order but that the state trespass laws "may not be enforced
solely to exclude persons from exercising First Amendment or other protected conduct in
a manner consistent with the use of the property." Id. at 410. The Court further
determined that the People have the burden of demonstrating that there was a lawful
order not to enter and that enforcement did not unlawfully inhibit the defendant from
engaging in [*3]constitutionally or statutorily protected
conduct. Id. at 411.
A person entering a public place does so with authority under a presumptive
license unless there is a posting to the contrary. People v. Powell, 54 NY2d 524,
531, 446 N.Y.S.2d 232, 430 N.E.2d 1285 (1981). Without evidence to the contrary, the
apartment complex is a public place and the Defendant entered the grounds with license.
The testimony from both the police officer and the Defendant indicated that there was a
fence separating Planned Parenthood from the apartment complex. If the area that the
Defendant was standing in was enclosed by a fence, then that area would be deemed
private and the Defendant would no longer possess a license to enter and remain on that
part of the premises and would be subject to a trespassing violation.
However, neither the Defendant's testimony nor the police officer's
testimony elicited sufficient detail to determine whether or not the specific location that
the Defendant was standing in was enclosed by a fence.Since no specific testimony or
evidence demonstrated that the Defendant was standing in an enclosed area on the
apartment complex's property, the Defendant is deemed to have had maintained a license
to be on the property. The Defendant also testified that there were no "No Trespassing"
signs on the property which was not disputed by the evidence presented by the people.
The Defendant was therefore on the property lawfully engaging in protected free speech
activity.
Section 95-17 of the Village Code also proscribes remaining on the property.
It was undisputed that the Defendant left the apartment complex when ordered to do so
by the police office. The people did not provide a complaining witness or other evidence
demonstrating that the Defendant was previously asked to leave or was otherwise
unauthorized to be on the property. Neither the property owner, their agent nor any tenant
of the apartment complex appeared at trial to complain of the Defendant's presence on
the property. A negative inference is drawn by the absence of a complaining witness at
the trial of this matter. It is clear that Planned Parenthood is the primary entity bothered
by the Defendant's presence on the neighboring property and yet the property owner or
manager of the apartment complex neither appeared in court nor signed anything
indicating that they were bothered by the Defendant's presence on their property or that
they had "No Trespass" signs on the premises.
The people failed to prove that the Defendant entered the apartment complex
and remained without authority. Accordingly, the complaint against the Defendant is
dismissed.
Dated:January 23, 2013
_____________________________
TANYA HOBSON-WILLIAMS
Hempstead Village Justice