This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 141
The People &c.,
            Respondent,
        v.
Thomas Barnes,
            Appellant.




          Laura Boyd, for appellant.
          Sheila O'Shea, for respondent.




MEMORANDUM:
          The order of the Appellate Term should be affirmed.
          On February 15, 2011, Officer Jamar Lamey was
patrolling a New York City Housing Authority building when he
observed defendant in the lobby beyond the building's vestibule
and a posted "No Trespassing" sign.   When asked, defendant stated

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that he did not reside at the building, nor was he was able to
identify any resident who had invited him.   Having determined
that defendant was neither a tenant nor an invited guest, the
officer arrested him for trespassing.
          Defendant was charged, by information, with one count
of criminal trespass in the second degree (Penal Law
§ 140.15[1]), a class A misdemeanor, and one count of criminal
trespass in the third degree (Penal Law § 140.10[e]), a class B
misdemeanor.   He pleaded guilty to the second-degree charge and
was sentenced to time served.
          Defendant appealed, arguing that the misdemeanor
information was jurisdictionally defective for two reasons.
First, he asserted that he could not be charged with second-
degree criminal trespass for being in the common area of a public
housing authority building because such areas are open to the
public.   Second, he argued that even if he could be charged with
second-degree criminal trespass, the misdemeanor information
insufficiently alleged that his presence in the lobby of the
building was unlawful.
          The Appellate Term rejected defendant's contentions and
affirmed (40 Misc 3d 133[A] [App Term 1st Dept 2013]).   A Judge
of this Court granted defendant leave to appeal (23 NY3d 1034
[2014]), and we now affirm.
          The legislature has established three degrees of non-
felonious criminal trespass, with each "becom[ing] progressively


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more serious as they approach criminal trespass in the first
degree" (People v Moore, 5 NY3d 725, 727 [2005]).
          A person is guilty of simple trespass, a violation,
when he or she "knowingly enters or remains unlawfully in or upon
premises" (Penal Law § 140.05).
          Criminal trespass in the third degree, a class B
misdemeanor, is established when a person "knowingly enters or
remains unlawfully in a building or upon real property" and one
of seven aggravating factors is present.   As relevant here, one
such aggravating factor elevating simple trespass to criminal
trespass in the third degree is "where the building is used as a
public housing project in violation of conspicuously posted rules
governing entry and use thereof" (Penal Law § 140.10[e]).
          Criminal trespass in the second degree, a class A
misdemeanor, is committed when a person "knowingly enters or
remains unlawfully in a dwelling" (Penal Law § 140.15[1]).     A
"dwelling" is defined as "a building which is usually occupied by
a person lodging therein at night" (Penal Law § 140.00[3]).
          For all degrees of criminal trespass, "[a] person
'enters or remains unlawfully' in or upon premises when he is not
licensed or privileged to do so" (Penal Law § 140.00[5]).     Where
the premises are open to the public, however, a person has
license or privilege to enter "unless he defies a lawful order
not to enter or remain, personally communicated to him by the
owner of such premises or other authorized person" (id.).


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                                - 4 -                        No. 141

          At the outset, defendant does not dispute that an
apartment building in a public housing project constitutes a
"dwelling."   Rather, this appeal turns on the phrase "enters or
remains unlawfully."    Defendant argues that a person cannot be
prosecuted under the second-degree criminal trespass statute for
entering the common areas of a public housing authority building
because those areas are open to the public.     And "[w]hen [a]
property is 'open to the public' at the time of the alleged
trespass . . . the accused is presumed to have a license and
privilege to be present" (People v Leonard, 62 NY2d 404, 408
[1984] [holding that the defendant could not be banished from a
SUNY campus, a publicly-owned and maintained property, absent
proof of a lawful order excluding him from the premises]).
          Contrary to defendant's argument, the word "public" in
the phrase "public housing" refers to ownership, not access.      It
is not the case that all property owned by the government is
"open to the public."    Certain areas of publicly-owned buildings
may be restricted from public use by a locked door or a front
desk, much like the common areas of privately-owned buildings
(see People v Rodriguez, 159 AD2d 201, 202-203 [1st Dept 1990],
lv denied 76 NY2d 742).    The presence of a "No Trespassing" sign
may also indicate that the common area of a publicly-owned
building is not open to the public.     Accordingly, we agree with
the Appellate Term that it is possible for a person to enter or
remain in a publicly-owned dwelling without license or privilege


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to do so.
            In light of the statute's plain language, we decline
defendant's invitation to consult the legislative history of a
different statute -- third-degree criminal trespass.    We resort
to legislative history "only where the language is ambiguous or
where a literal construction would lead to absurd or unreasonable
consequences" (Matter of Auerbach v Bd. of Educ. of City Sch.
Dist. of City of NY, 86 NY2d 198, 204 [1995]).    There is no
ambiguity in the language of Penal Law § 140.15(1), and defendant
has not suggested that our interpretation would lead to an absurd
or unreasonable result.
            In the alternative, defendant contends that even if the
second-degree criminal trespass statute applies, the misdemeanor
information charging him with that offense was facially
insufficient because it failed to establish that defendant lacked
license or privilege to be in the lobby of this particular
building.
            To be facially sufficient, a misdemeanor information
must contain "facts of an evidentiary character" that provide
"reasonable cause" to believe the defendant committed the crime
charged (CPL 100.15[3]; 100.40[1][b]) and "'non-hearsay
allegations' which, if true, establish every element of the
offense charged and the defendant's commission thereof" (People v
Kalin, 12 NY3d 225, 228-229 [2009], quoting CPL 100.40[1][c]).
            The misdemeanor information charging defendant with


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criminal trespass in the second degree sufficiently alleged that
he knowingly entered and remained unlawfully in a dwelling.         It
stated that Officer Lamey observed defendant in the lobby of an
apartment building, beyond the vestibule and a posted "No
Trespassing" sign.   Moreover, defendant admitted he did not
reside at the building and could not identify a resident who had
invited him onto the premises.    These allegations establish every
element of second-degree criminal trespass and provide reasonable
cause to believe defendant committed that offense.

*   *   *   *   *    *   *   *    *      *   *   *   *   *   *     *     *
Order affirmed, in a memorandum. Chief Judge Lippman and Judges
Pigott, Rivera, Abdus-Salaam, Stein and Fahey concur.

Decided October 20, 2015




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