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MATTER FLORETTE D. (12/31/68)

FAMILY COURT OF NEW YORK, JUVENILE TERM, QUEENS COUNTY 1968.NY.44114 <http://www.versuslaw.com>; 296 N.Y.S.2d 825; 58 Misc. 2d 1093 December 31, 1968 IN THE MATTER OF FLORETTE D., A PERSON ALLEGED TO BE A JUVENILE DELINQUENT Arthur M. Waldman, Charles A. Bovino and Martin M. Alpert for Gertrude Taccia, petitioner. Charles Schinitzky and Sebastian Ragusa for respondent. Jacob T. Zukerman, J. Author: Zukerman


Jacob T. Zukerman, J.

Author: Zukerman

 The respondent is a 15-year-old girl who is alleged to have violated section 140.10 of the Penal Law. The petitioner, Mrs. Gertrude Taccia, is a member of the security department of Gertz Department Store. Mrs. Taccia testified that she saw the respondent in the company of two companions in the store on September 19, 1968; that these companions were opening the pocketbooks of female customers; that since the people involved refused to prosecute, no action was brought against any of the girls for such attempts at taking unlawfully. Mrs. Taccia stated that she took all three girls to the security room and wrote up a report. She testified that she had been present on a prior occasion in July, 1968 when the respondent had been directed to stay out of the store. Mrs. Taccia testified also that she called Mr. Edward H. Dean, security director, who spoke with the respondent telling her that she had been ordered out of the store. Mr. Dean testified that he saw the respondent on September 19, 1968 when Mrs. Taccia brought her to the security room; that he asked her if she was the girl whom he had told in July not to come back into the store and that she had admitted this. Mr. Dean testified that in July, 1968 he had warned her to stay out of the store and that he had read to her section 140.10 of the Penal Law; he stated further that when he questioned her on September 19 why she had come into the store that day, she stated "I just came in"; and that he then charged her with violating the criminal trespass law and had her arrested.

At the end of the petitioner's case, the respondent moved for a dismissal as a matter of law on the ground that no prima facie case had been made. Decision was reserved pending submission of memoranda, which have been submitted and argued. After hearing arguments, the motion was denied. The respondent rested.

The Respondent's Contentions.

The respondent maintains that "the mere intrusion onto another's property, without consent, cannot in and of itself constitute criminal trespass, absent criminal intent "; that "the fact that the Petitioner had advised the Respondent not to return to the store and the fact that she did return to the store does not supply the necessary element of intent to commit some crime or do injury to the Petitioner's person or property" and that mere entry without intent to commit crime does not constitute unlawful entry (People v. Seaman, 21 A.D.2d 907 [1964]). Note however that this was decided on the basis of the old section 405 of the Penal Law, then in effect.

The respondent also argues that mere refusal to leave does not warrant a finding of criminal trespass (Marsh v. Alabama, 326 U.S. 501; People v. Collins, 44 Misc. 2d 430 [1964], affd. 16 N.Y.2d 554). She maintains that when she was asked to leave in July that she did so and that the petitioner had not testified that she had been asked to leave the store on September 19 before being arrested.

Further the respondent contends that she had a lawful right to enter and remain in petitioner's store, even after being told not to return by the petitioner. (Civil Rights Law, art. 4, § 40; Executive Law, § 296; U.S. Civil Rights Act of 1964, § 201, subd. [b], par. [2]; subd. [c], par. [2] [U. S. Code, tit. 42, § 2000a]; Blow v. North Carolina, 379 U.S. 684; Bouie v. City of Columbia, 378 U.S. 347.)

In addition, the respondent suggests that if the intent of section 140.10 of the Penal Law were to give a store owner the right to exclude persons from its store for all time and to subject them to criminal prosecution if they did return, it would be unconstitutional; and that the lapse of several months between warning to stay out and the return to the store was a long enough period to make this request to stay out unreasonable.

The Petitioner's Arguments.

The petitioner, on the other hand, maintains that article 140 and particularly section 140.10 of the Penal Law is constitutional; that section 140.10 and subdivision 5 of section 140.00 make unlawful the mere doing of the prohibited act of knowingly entering the store after having received the lawful order not to enter; that no criminal intent need be shown in re-entering the store after having received a lawful order not to re-enter; that if any doubt exists that the respondent violated article 140, particularly section 140.10 thereof, by knowingly entering the store after having received a lawful order not to do so, that it is a question of law and any doubt on the law must be resolved in favor of the petitioner on the motion to dismiss.

The Issues.

1. Is article 140 and particularly section 140.10 of the Penal Law constitutional?

2. Did the respondent, after having received a lawful order not to enter the store, personally communicated to her by an authorized person in July, 1968, violate section 140.10 by ...


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