Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Barbara Jaffe, J.), rendered December 9, 2009, after a non-jury trial, convicting him of criminal trespass in the third degree, and imposing sentence.
PRESENT: Torres, J.P., Shulman, Hunter, Jr., JJ
Hunter, Jr., J.
Judgment of conviction (Barbara Jaffe, J.), rendered December 9, 2009, reversed, on the law and on the facts, accusatory instrument dismissed and fine and surcharge, if paid, remitted.
On the evening of December 19, 2008, defendant was arrested for trespass at Manhattan's Taft Houses, a public housing development consisting of nine almost identical brown brick buildings. According to defendant, he was there to visit a long-time family friend for dinner and provide her with computer assistance, but mistakenly entered the wrong building directly across the street. Following his arrest, defendant was charged by misdemeanor complaint with second-degree criminal trespass (Penal Law § 140.15), but in a subsequent prosecutor's information, the charge was reduced to one count of criminal trespass in the third degree (Penal Law § 140.10[a]).
At the non-jury trial, the arresting officer, Raquel Marte, was the prosecution's sole witness. She testified, inter alia, that on December 19, 2008, she was on "vertical patrol" at one of the Taft Houses buildings, located at 65 East 112th Street. She testified that tenants would access the building by using a key or the intercom and that there were "no trespassing" signs posted. She could not recall if the locks on the entrance doors to the building were working that day and could not recall exactly where the "no trespassing" signs were posted. She went on to testify that the entrance doors to the building were not always locked. She observed the defendant enter the building but was not able to state how the defendant gained entry. She then observed defendant board an elevator within a minute of his entering the building. She and her partner boarded an adjacent elevator to the 19th floor. However, she stated that the elevator stopped on the 11th floor, at which time she observed defendant standing in the hallway. Marte and her partner continued up to the 19th floor where they patrolled the roof before taking the stairs down to the 18th floor. Marte testified that she then observed defendant standing in the hallway of the 18th floor. She approached him and asked him if he lived in the building. Defendant informed her that he did not live in the building but was visiting an aunt who was a tenant in the building and that he also had friends in the building. Defendant could not provide an apartment number or the name of his aunt or friends. Defendant was then arrested and searched. No drugs or weapons were found on his person.
Defendant testified that while he was a student at the State University of New York at Albany, he became close friends with a classmate named Charee Walker and subsequently developed a close relationship with her mother, Laurie Holder, whom he referred to as his "aunt." Defendant testified that Ms. Holder lived in the Taft Houses and he visited her ten to fifteen times over a ten-year period prior to December 2008. However, he had not visited her in 2008.
Defendant further testified that he had spoken to Ms. Holder by telephone on December 18, 2008, and arranged to visit her the next day to help her with some computer problems and to have dinner. The next day, he took the subway to Taft Houses to see Ms. Holder and when he got off the subway at 110th Street, "it was dark" and he had not been "in that area a while." He "did notice some changes" but stated that "for the most part everything was the same." He proceeded to walk to 112th Street and stated that he crossed a parking lot connected to a walkway which was significant to him because a similar parking lot and walkway was in front of 1695 Madison Avenue where Ms. Holder lives. However, he instead entered 65 East 112th Street.
Defendant testified that he gained access to 65 East 112th Street as another individual exited the building and he took the elevator to the 18th floor. He exited on the 18th floor and "realized that it probably wasn't the right floor" as it did not look familiar to him. He knocked on the door to an apartment he believed was Ms. Holder's, but no one answered, and by that time he "was pretty sure that it wasn't the right floor." He took the stairs down to the 14th floor and exited the staircase to see if it "looked like the right one, " since that one did not look familiar to him, he continued to go down the stairs and exited on the 11th floor to call Ms. Holder because he "didn't think it would be safe to go all the way downstairs."
While he was searching for Ms. Holder's number on his cell phone, he was approached by Marte and her partner who asked him if he lived in the building, what he was doing in the building and if he knew anyone who lives in the building. Defendant informed them that he was "visiting friends" and that his "aunt" lived in the building. When asked where his aunt lived, he testified that he told the officers, "I thought she lived on the 18th floor but I am calling her right now to go check because I had the floor wrong." He testified that Marte did not permit him to make a phone call. He informed her that he was on probation and if he was permitted to make a phone call it would "clear everything up." She refused and he was arrested.
Defendant admitted that there was no blood relation between him and Ms. Holder. He explained that he referred to her as his "aunt" at the time of the arrest "to create an understanding" that it was "somebody older" and not just a "buddy" or "pal, " but he was nevertheless arrested.
Ms. Holder also testified for the defense and essentially corroborated defendant's assertions. Ms. Holder confirmed that she had known defendant since 1997 and that he was the "son" she never had. She testified that he called her "mom" and confirmed that she invited defendant to her apartment on the evening of December 19, 2008 to fix her computer and have dinner. Ms. Holder also testified that she lives on the 18th floor of 1694 Madison Avenue, not 1695 Madison Avenue and that defendant "constantly called" her to confirm what floor she lived on. She testified that Taft Houses is comprised of at least ten buildings that are the same shape and height and arrangement with the only visible difference being a colored strip "in the middle" that is "not very visible" and to notice it one would "have to know it to look for it."
Ms. Holder further testified that there is a parking lot in front of her building and acknowledged that there was one in front of 65 East 112th Street. The only difference is that the one in front of her building is "directly in front" and the parking lot in front of 65 East 112th Street is "slightly to the side." She also testified that the intercom system in her building does not work and the directory listing residents was incomplete and she did not know whether or not her name was listed. She also testified that the door to her building "hasn't been locked in years."
Ms. Holder testified that after receiving the telephone call from defendant notifying her of his arrest, she contacted 311 and eventually filed a complaint with the "complaint bureau" about the fact that her invited guest had been arrested for trespassing. Following the trial, Criminal Court convicted defendant of ...