New York Supreme and/or Appellate Courts Appellate Term, First Department
September 9, 2011
PEOPLE OF THE STATE OF NEW YORK,
The People appeal from an order of the Criminal Court of the City of New York, Bronx County (William I. Mogulescu, J.), dated April 30, 2010, which granted defendant's motion to dismiss the accusatory instrument for facial insufficiency.
People v Livingston-Boyd (Vandal)
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This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on September 9, 2011
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
Order (William I. Mogulescu, J.), dated April 30, 2010, reversed, on the law, accusatory instrument reinstated and matter remanded for further proceedings.
We find unavailing defendant's challenge to the facial sufficiency of the accusatory instrument charging him with several trespass related offenses (see Penal Law §§ 140.15, 140.10[a], 140.05). Specifically, the misdemeanor information -- comprising the misdemeanor complaint and supporting deposition -- alleged that defendant was observed inside the lobby of a public housing project building that was marked by "no trespassing" signs and equipped with a locked entrance door and "buzzer system;" that defendant lived elsewhere; and that although defendant stated that he was in the building to visit an unnamed "friend" in a specified apartment, the arresting officer, upon investigation, could not locate anyone who had given defendant permission to be in the building. When "given a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 ; see People v Davis, 13 NY3d 17, 20 ), these allegations were sufficient, for pleading purposes, to establish the elements of the charged offenses (see People v Maresca, 19 Misc 3d 133[A], 2008 NY Slip Op 50663[U] ; People v Johnson, 8 Misc 3d 137[A] , 2005 NY Slip Op 51258[U] , lv denied 5 NY3d 853 ). Contrary to defendant's contentions, the accusatory instrument is not jurisdictionally infirm due to the absence of specific allegations concerning the nature and extent of the police investigation at the scene, a matter best left for trial.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concur
Decision Date: September 09, 2011
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