The People of
the State of New York, Plaintiff,
against
Bangoura Fode, Defendant.
|
2015BX009696
Appearances of Counsel
The People - Robert T. Johnson, District Attorney, Bronx County by Ayushi
Rajpurohit, Assistant District Attorney
Defendant — The Bronx Defenders by Mairin Fogarty and Edward
McGowan
Armando Montano, J.
Defendant is charged with Criminal Trespass in the Second Degree (PL §
140.15[1]), Criminal Trespass in the Third Degree (PL § 140.10[a]), and Trespass
(PL § 140.05).
Defendant moves for an order 1) dismissing the accusatory instrument as facially
insufficient, or in the alternative, finding that the complaint has not been converted into
an information; 2) suppressing any and all statements made by and/or elicited from
defendant for which defendant received notice pursuant to CPL § 710.30
(Huntley/Dunaway); and 4) precluding the People from introducing at trial any evidence
of defendant's prior convictions or bad acts (Sandoval/Ventimiglia).
The factual allegations in the accusatory instrument read as follows:
Deponent states that, [on or about February 28, 2015 at approximately 10:05
p.m. at inside of 593 East 141st Street, County of Bronx, State of New York], a Clean
Halls Apartment building, he observed defendant in the 1st floor hallway. Deponent
further states that he observed location to have locked entrance doors, an intercom/buzzer
entry system, conspicuously posted NO TRESPASSING signs indicating that only
tenants and their guests were allowed on the premises.
Deponent further states that defendant is not a tenant of the above location,
in that [ ] when asked if he was a tenant of the above location defendant stated in sum
and substance; NO.
Deponent further states that defendant was unable to provide a tenant's
name, apartment number or a legitimate purpose for his presence at said location.
Deponent further states that he has reviewed a Clean Halls Affidavit signed
by Richelle Neufville, the owner/managing agent of said location which is on file with
the New York City [*2]Police Department and said
affidavit authorizes the New York City Police Department to arrest individuals that are
not tenants of the location or invitees.
Deponent further states that based upon the aforementioned information,
defendant did not have permission or authority to enter or remain in said location.
Motion to Dismiss
/i>
Defendant argues that the accusatory instrument must be dismissed as
facially insufficient because the complaint fails to allege sufficient facts to demonstrate
that he knowingly trespassed. Defendant asserts that the Clean Halls Affidavit dated
January 24, 2013, more than two years prior to his arrest, is stale and cannot be used to
establish that he knowingly entered or remained unlawfully in the apartment building
located at 593 East 141st Street, Bronx, New York (the "subject premises"). In addition,
the factual allegation indicating the presence of "No trespassing" signs is insufficient to
demonstrate defendant's knowledge. As the complaint relies upon a stale Clean Halls
Affidavit and fails to otherwise establish that sufficient notice was provided, defendant
avers that all three trespass charges must be dismissed.
In the alternative, defendant moves to deem the complaint unconverted
due to the People's failure to properly corroborate hearsay within the document.
Defendant argues that a stale affidavit is inadequate to convert the complaint into an
information. Therefore, any statement of readiness from the People would be illusory.
In opposition, the People first note that the Clean Halls Affidavit is not
stale as it indicates that the authority granted to the local police precinct to enter the
subject premises for the purpose of arresting trespassers is to be in effect for perpetuity.
Second, the People assert that the Clean Halls Affidavit does not form the basis of
deponent's knowledge. The People argue that the information provides adequately
detailed factual allegations which provide reasonable cause to believe that defendant
knowingly entered and remained unlawfully at the subject premises. Specifically, the
information alleges that the arresting officer observed defendant in the first floor hallway
of a dwelling with locked entrance doors and conspicuously posted "No trespassing"
signs indicating that only tenants and their guests were allowed on the subject premises.
In addition, defendant admitted to the arresting officer that he was neither a tenant nor
had any legitimate purpose for being at the subject premises. Based on the foregoing, the
People contend that each and every element of the offenses charged is supported by the
factual allegations set forth in the accusatory instrument.
It is well settled that an accusatory instrument must contain facts of an
evidentiary nature that support or tend to support the crimes charged (CPL §
100.15[3]; People v. Dumas, 68 NY2d 729 [1986]) and contain non-hearsay
allegations that establish, if true, every element of the crimes charged (CPL §
100.40[1][c]). Further, an accusatory instrument must provide reasonable cause to
believe that the defendant committed the crimes charged. CPL § 100.40(1)(b);
Dumas, 68 NY2d 729. Reasonable cause to believe that a defendant committed
the crimes charged "exists when evidence or information which appears reliable discloses
facts or circumstances which are collectively of such weight and persuasiveness as to
convince a person of ordinary intelligence, judgment and experience that it is reasonably
likely that such offense was committed and that such person committed it." CPL §
70.10. "In order for the reasonable cause standard to be met, the factual portion of the
accusatory instrument must [*3]describe conduct that
constitutes the crime charged." People v. Hightower, 18 NY3d 249, 254 (2011).
In reviewing an accusatory instrument for facial sufficiency, the court must
assume the truth of the factual allegations and consider all favorable inferences drawn
therefrom. CPL §§ 100.40 and 100.15; People v. Mellish, 4 Misc 3d 1013(A) (Crim Ct, NY
County 2004). The facts alleged need only establish the existence of a prima facie case,
even if those facts would be insufficient to establish guilt beyond a reasonable doubt.
People v. Jennings, 69 NY2d 103 (1986). Moreover, "the Court is not required to
ignore common sense or the significance of the conduct alleged." People v.
Gonzalez, 184 Misc 2d 262, 264 (App Term, 1st Dept. 2000) quoting People v.
Abdul, 157 Misc 2d 511, 514 (Crim Ct, NY County 1993).
A person is guilty of Criminal Trespass in the Second Degree when "he or she
knowingly enters or remains unlawfully in a dwelling [FN1]
." PL § 140.15(1). 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
which is fenced or otherwise enclosed in a manner designed to exclude intruders." PL
§ 140.10(a). A person is guilty of Trespass when "he knowingly enters or remains
unlawfully in or upon premises." PL § 140.05.
All three of the offenses charged include the essential element of a defendant
knowingly [FN2]
entering or remaining unlawfully upon the type of property specified in the particular
charge. "A person enters or remains unlawfully' in or upon premises when he is not
licensed or privileged to do so." PL § 140.00(5). "In general, a person is licensed or
privileged to enter a 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). Where 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). To support these charges,
the People must assert sufficient non-hearsay allegations supporting that the defendant
was knowingly present where he was not welcome. See, People v. Outlar,
177 Misc 2d 620 (Crim Ct, NY County 1998).
Notwithstanding the fact that the Clean Halls Affidavit provides that the
"undersigned bind[s] the owner from [January 24, 2013] into perpetuity," this Court finds
defendant's arguments to be unpersuasive. For purposes of facial sufficiency, the Clean
Halls Affidavit is immaterial since it neither amplifies the pleadings, enhances the factual
allegations, nor provides a missing element of the offenses charged. See, People v. Eastmond, 19 Misc
3d 824 (Crim Ct, Bronx County 2008); People v. Tavares, 17 Misc 3d
1119(A) (Crim Ct, NY County 2007). The duly notarized Clean Halls Affidavit,
executed by Richelle Neufville, identifies the subject premises as a dwelling where only
tenants, their family members, and invited guests are licensed and privileged to enter or
remain. The Clean Halls Affidavit simply demonstrates that the local police precinct was
asked by the owner/managing agent of the [*4]subject
premises to conduct patrols in the common areas of the building due to drug-related
activity.
Giving the factual allegations "a fair and not overly restrictive or technical
reading," this Court is satisfied that the information is facially sufficient as the factual
portion contains allegations which provide reasonable cause to believe that defendant
entered or remained unlawfully in a dwelling. People v. Casey, 95 NY2d 354,
360 (2000). First, defendant was observed in the first floor hallway of a building with
conspicuously posted "No trespassing" signs, locked entrance doors, and an
intercom/buzzer entry system. Second, the building was identified by the arresting officer
as a dwelling. Third, defendant admitted to the arresting officer that he resided
elsewhere, he was not visiting anyone in the building, and he had no business being in
the building. The fact that defendant was not licensed or privileged to enter or remain as
a tenant or as a guest of a tenant is sufficiently established by his own admissions.
See, People v.
Darling, 8 Misc 3d 127(A) (App Term, 1st Dept. 2005); People v.
Quinones, 2002 NY Slip Op 51292[U] (App Term, 1st Dept. 2002); People v.
Heller, 180 Misc 2d 160 (Crim Ct, NY County 1998). As the elements of Criminal
Trespass in the Third Degree and Trespass are wholly included in the elements of
Criminal Trespass in the Second Degree, an accusatory instrument that is facially
sufficient for Criminal Trespass in the Second Degree is facially sufficient for the lesser
included offenses of Criminal Trespass in the Third Degree and Trespass. Motion to Suppress Statement Evidence
/i>
Statement notice was duly served at defendant's arraignment pursuant to
CPL § 710.30(1)(a). The statement notice indicates that on February 28, 2015 at
11:05 p.m. at inside of 593 East 141st Street, defendant stated the following to Police
Officer Fernando Rodriguez: 1) "NO"; 2) "GOING TO A PARTY ON THE 5TH
FLOOR"; and 3) "NO".
Defendant asserts on February 28, 2015 at approximately 10:05 p.m., he
was attempting to visit a family friend at the subject premises. At the time of his
warrantless arrest, defendant denies acting in a suspicious manner, committing any crime,
or acting in manner that might have reasonably aroused police suspicion.
Defendant argues that any and all statements allegedly made by and/or
elicited from him were obtained illegally because 1) they are the tainted fruit of an
unlawful arrest; 2) they were made after he was subjected to custodial interrogation
without first being advised on his Miranda rights; 3) he made the statements without
knowingly and intelligently waiving his right to remain silent; and 4) he made the
statements involuntarily. In the alternative, defendant requests a Huntley/Dunaway
hearing.
The People oppose defendant's request for a Dunaway hearing as this
branch of the motion fails to state a sufficient legal basis for suppression as required by
CPL § 710.60. The People note that this branch of defendant's motion consists only
of a denial of wrongdoing or criminal activity at the time of his arrest. Should a Huntley
hearing be granted, the People request the Court to limit the scope of the hearing to
determine only the voluntariness of defendant's statements.
A motion to suppress evidence "must state the ground or grounds of the
motion and must contain sworn allegations of fact." CPL § 710.60(1). A motion to
suppress must be summarily granted where the defendant alleges a legal ground
warranting suppression and the People concede the truth of the factual allegations. CPL
§ 710.60(2)(a). A Court may summarily deny a motion to suppress if the defendant
fails to allege a proper legal basis for suppression or if the "sworn allegations of fact do
not as a matter of law support the ground alleged." CPL § [*5]710.60(3)(b). "[T]he sufficiency of [the] defendant's factual
allegations should be evaluated by (1) the face of the pleadings, (2) assessed in
conjunction with the context of the motion, and (3) [the] defendant's access to
information." People v. Mendoza, 82 NY2d 415, 426 (1993). However, even if
the defendant's factual allegations are deficient, summarily denying a motion to suppress
is disfavored. In Mendoza, supra, the Court of Appeals explained:
The CPL does not mandate summary denial of defendant's motion even if
the factual allegations are deficient .If the Court orders a Huntley or Wade
hearing, and defendant's Mapp motion is grounded in the same facts involving
the same police witnesses, the court may deem it appropriate in the exercise of discretion
to consider the Mapp motion despite a perceived pleading deficiency. Indeed,
considerations of judicial economy militate in favor of this procedure; an appellate court
might conclude that summary denial of the Mapp motion as improper, requiring
the parties and witnesses to reassemble for a new hearing, often months or years
later.
In a motion to suppress a statement, all that is required to warrant a Huntley
hearing is the mere claim that the defendant's statement was involuntary. People v.
Weaver, 49 NY2d 1012 (1980); People v. Bingham, 144 AD2d 682 (2d
Dept. 1988); Matter of Brian E., 206 AD2d 665 (3d Dept. 1994). Therefore,
defendant's motion for a Huntley hearing is granted.
As stated above, summary denial of suppression motion is disfavored. In the
interest of judicial economy and in light of the fact that the branch of defendant's motion
seeking a Huntley hearing "is grounded in the same set of facts and involve[es] the same
police witnesses" (Mendoza, 82 NY.2d at 429), defendant's motion for a
Dunaway hearing to determine whether there was probable cause to effectuate his arrest
is granted. Therefore, defendant's motion for a Dunaway hearing is granted.
Sandoval/Ventimiglia
/i>
Defendant requests and the People consent to disclosure of defendant's
past criminal history and/or prior bad or immoral acts which the People intend to use at
trial and a pre-trial hearing pursuant to People v. Sandoval, 34 NY2d 371 (1974)
and People v. Ventimiglia, 52 NY2d 350 (1981). This hearing shall be
held immediately before the commencement of trial.
Accordingly, defendant's motion to dismiss the accusatory instrument as
facially insufficient is denied. Defendant's motion for a Huntley/Dunaway hearing is
granted. Defendant's motion for a Sandoval/Ventimiglia hearing is respectfully referred
to the trial judge.
This constitutes the decision and order of this Court.
Dated:May 14, 2015
Bronx, New York
_______________________________
Hon. Armando Montano
Footnotes
Footnote 1:The term "dwelling" is
defined as a "building which is usually occupied by a person lodging therein at night."
PL § 140.00(3).
Footnote 2:"A person acts
knowingly with respect to conduct or to a circumstance described by a statute defining an
offense when he is aware that his conduct is of such nature or that such circumstance
exists." PL § 15.05(2).