AT1 order dated July 31, 2013, affirming judgment of conviction. Decision below: 40 Misc.3d 133(A), 977 NYS2d 668, 2013 WL 3942917. Read, J., granted leave July 8, 2014. Argued September 16, 2015.

ISSUE PRESENTED: Whether an individual may be prosecuted for second-degree criminal trespass (PL §140.15[1]) based upon presence in the lobby of a public housing apartment building, or whether, instead, such conduct can only be prosecuted as third-degree criminal trespass under PL §140.10(e) and (f). (Assigned counsel: Seymour James, Legal Aid Society, Criminal Appeals Bureau, 199 Water Street, NYC 10038.)

Issue: Is a misdemeanor complaint charging criminal trespass in the second degree (entering or remaining unlawfully in a dwelling) jurisdictionally defective where it alleges that the defendant was in a common area of a public housing building and defendant stated that he was neither a tenant or invited guest. 

 

Held: The information is valid.  Although public housing is government-owned, that does not mean that all such property is “open to the public.” “[T]he word ‘public’ in the phrase ‘public housing’ refers to ownership, not access.”  Accordingly, a person may enter or remain in a publicly-owned dwelling without license or privilege to do so.  

 

CAL Observes: This uncontroversial holding in the context of misdemeanor complaints still leaves us wondering what encounter preceded the arrest, and whether mere presence in any area of public housing will expose an individual to a police encounter and questioning – notwithstanding the Court’s statement in People v. Anthony Barksdale (Oct. 22) limiting its holding regarding the police basis for a level 1 inquiry to “the particular facts and circumstances of the case.”