The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM-DECISION AND ORDER
Defendant appeals (Dkt. No. 15) from the amended judgment of United States Magistrate Judge Gustave J. DiBianco (Dkt. No. 14) convicting him of five counts of trespass arising from picketing activity in the James M. Hanley Federal Building in Syracuse, New York ("Federal Building") and sentencing him to a total of 35 days incarceration. The appeal challenges only the convictions on Counts 1 and 2.
The superceding information (Dkt. No. 6) charged defendant with six instances of remaining unlawfully in the Federal Building, in violation of New York Penal Law § 140.05 and 18 U.S.C. §§ 7(3) and 13.*fn1 Magistrate Judge DiBianco tried defendant and convicted him of Counts 1 through 5. Magistrate Judge DiBianco concluded that on each occasion defendant had violated section 140.05 by knowingly remaining unlawfully on the fourteenth floor of the Federal Building in defiance of a lawful order to leave given by a Federal Protective Service Officer ("FPS Officer"). Magistrate Judge DiBianco determined that the FPS Officers' orders to leave the building were lawful because the applicable regulations required defendant to have a permit, which he did not have.
Magistrate Judge DiBianco also convicted defendant on Counts 3 through 5 on the additional ground of failing to obey a prior order of that court, issued on December 13, 2002, directing defendant to refrain from entering the Federal Building for the purposes of marching, picketing and protesting without a permit.
On appeal, defendant challenges his convictions of trespass on Counts 1 and 2, stemming from incidents occurring on September 30, 2002 and November 4, 2002. It is undisputed that on those two occasions defendant was carrying a placard and walking back and forth in the corridor on the fourteenth floor of the Federal Building. He refers to his activities as "political speech" and does not claim to have been in the building to conduct business at any of the governmental offices open to the public. Magistrate Judge DiBianco found the following: that on both occasions FPS Officers informed defendant that he was required to have a permit; that defendant admittedly did not have a permit; that the FPS Officers lawfully ordered him to leave; that defendant refused to leave; and that his refusal to obey the orders rendered him guilty of trespass. Whether the Orders to Leave Were Lawful (Counts 1 and 2)
Defendant contends that the orders to leave were not lawful because he was not required to have a permit in order to demonstrate in the corridor on the fourteenth floor of the Federal Building. Thus, he argues, his refusal to leave was lawful, and he cannot be guilty of trespass.
The permit requirement in issue is contained in regulations implementing 40 U.S.C. § 581(h)(2). The statute reads:
(h) Cooperative use of public buildings.--***
(2) Occasional use of space for non-commercial purposes. The Administrator [of General Services] may make available, on occasion,... an auditorium, meeting room, courtyard, rooftop, or lobby of a public building to a person, firm, or organization engaged in cultural, educational, or recreational activity ... that will not disrupt the operation of the building.
The applicable regulations, set forth in 41 CFR Part 102-74, Subpart D, entitled "Occasional Use of Public ...