Cite as: People v. John Babyak, 29334, NYLJ 1202586870320, at *1 (Vill., NA, Decided January 23, 2013)

Village Justice Tanya Hobson-Williams

Decided: January 23, 2013

ATTORNEYS

For the People: Jacqueline Zore-Smrek

For the Defendant: John J. Broderick, Esq.

DECISION OF THE COURT

 

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On April 21, 2012, the Defendant was issued Violation number AT29334-12 for Trespassing in violation of Hempstead Village Code §95-17 at the property located at 554 Fulton Avenue, Hempstead, New York. On July 11, 2012, a trial of the matter was conducted.

At trial, the Defendant testified that he was standing at a fence located at 540 Fulton Avenue, which is an apartment complex next to Planned Parenthood. Defendant avers that he was not on Planned Parenthood's property. The Defendant stated that he was standing at the fence on the apartment complex property for the purpose of protesting people entering and leaving Planned Parenthood which was located next to the apartment complex. The Defendant was engaging in free speech activity.

The Defendant stated that he was never advised by anyone that he could not enter the apartment complex property. Defendant further stated that the apartment complex did not have "No Trespassing" signs and no one advised him that they were annoyed by his presence. The Defendant then stated that he left the property when the police officer told him to leave.

The police officer who issued the Trespass ticket to the Defendant testified that he heard the Defendant yell, "They kill babies", prior to approaching the Defendant. The police officer was in the parking lot of Planned Parenthood and met the Defendant at a fence separating Planned Parenthood from the apartment complex. The police officer stated that he asked the Defendant why he was on private property and whether he knew anyone living in the apartment complex. The police officer testified that the Defendant responded that he was on the property to get closer to Planned Parenthood and that he did not know anyone in the building. The police officer then issued the Defendant a summons for violating Hempstead Village Code section 95-17, for Trespassing. The police officer then asked the Defendant to leave the property and the Defendant complied.

 

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DISCUSSION

The People argued that the Defendant had no legitimate purpose for being on the apartment complex property because there was a fence on the property where the Defendant was standing. They also argued that the Defendant did not have permission from the property owner to be on the property.

Hempstead Village Code section 95-17, states, "It shall be unlawful for any person to enter or remain without authority upon any public or private property." The Hempstead Village Code does not define the term, "to enter or remain without authority". The Hempstead Village Code also prohibits entering and remaining on "public property" without authority which is not clarified, defined or limited in scope or application anywhere in the Village Code.

However, New York State Penal Law section 140.00 defines a similar phrase, "enter or remain unlawfully". New York State Penal Law 140.00(5) states that a person who "enters or remains in or upon premises which are at the time open to the public does so with license and privilege 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." Although the Hempstead Village Law is not a penal law, an analysis of the New York State Penal Law definition can assist in determining whether or not the Defendant has committed a Trespass under the Hempstead Village Code.

Since the Hempstead Village Code not only proscribes trespassing on private property but also proscribes trespassing on public property without limitation or clarification, this Court finds that a person who enters or remains on public property in the Village of Hempstead does so with license and privilege unless the person defies a lawful order not to enter or remain, personally communicated to him by the owner of such premises or other authorized person. This finding is consistent with a long line of case law on the topic.

For example, in People v. Leonard, 62 N.Y.2d 404, 477 N.Y.S.2d 111, 465 N.E.2d 831 (1984), the New York Court of Appeals overturned a conviction for trespass against a former SUNY student who had been issued a persona non grata two years prior due to his behavior on campus. The Court of Appeals held that, "When the 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."

All people "have a license and privilege to be present in areas of buildings or real property open to the public. See People v. Outlar, 177 Misc.2d 620, 677 N.Y.S.2d 430 (N.Y.C.Crim.Ct. 1998) and the People have the burden of proving that the Defendant lacked a license or privilege to enter the subject premises. People v. Brown, 306 N.Y.S.2d 449 (1969). An apartment complex has been deemed to be a place open to the public unless there are signs to the contrary and common areas of a multiple dwelling unit building is presumptively a public place. People v.

 

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Powell, 54 N.Y.2d 524, 531, 446 N.Y.S.2d 232, 430 N.E.2d 1285 (1981). Also, hallways of multiple dwellings have been considered public places within the trespass statutes. People v. Beltrand, 63 Misc.2d 1041, 1047, 314 N.Y.S.2d 276 (Crim.Ct.N.Y.Co.1970), aff'd, 67 Misc.2d 324, 324 N.Y.S.2d 477 (App. Term 1st Dep't 1971).

In trespass cases, the People have the burden of proving that (1) a lawful order excluding the defendant from the premises issued, (2) that the order was communicated to the defendant by a person with authority to make the order, and (3) that the defendant defied that order. People v. Leonard, 62 N.Y.2d at 408. In People v. Leonard, the New York Court of Appeals recognized that the school administrators had broad power to maintain order but that the state trespass laws "may not be enforced solely to exclude persons from exercising First Amendment or other protected conduct in a manner consistent with the use of the property." Id. at 410. The Court further determined that the People have the burden of demonstrating that there was a lawful order not to enter and that enforcement did not unlawfully inhibit the defendant from engaging in constitutionally or statutorily protected conduct. Id. at 411.

A person entering a public place does so with authority under a presumptive license unless there is a posting to the contrary. People v. Powell, 54 N.Y.2d 524, 531, 446 N.Y.S.2d 232, 430 N.E.2d 1285 (1981). Without evidence to the contrary, the apartment complex is a public place and the Defendant entered the grounds with license. The testimony from both the police officer and the Defendant indicated that there was a fence separating Planned Parenthood from the apartment complex. If the area that the Defendant was standing in was enclosed by a fence, then that area would be deemed private and the Defendant would no longer possess a license to enter and remain on that part of the premises and would be subject to a trespassing violation.

However, neither the Defendant's testimony nor the police officer's testimony elicited sufficient detail to determine whether or not the specific location that the Defendant was standing in was enclosed by a fence. Since no specific testimony or evidence demonstrated that the Defendant was standing in an enclosed area on the apartment complex's property, the Defendant is deemed to have had maintained a license to be on the property. The Defendant also testified that there were no "No Trespassing" signs on the property which was not disputed by the evidence presented by the people. The Defendant was therefore on the property lawfully engaging in protected free speech activity.

Section 95-17 of the Village Code also proscribes remaining on the property. It was undisputed that the Defendant left the apartment complex when ordered to do so by the police office. The people did not provide a complaining witness or other evidence demonstrating that the Defendant was previously asked to leave or was otherwise unauthorized to be on the property. Neither the property owner, their agent nor any tenant of the apartment complex appeared at trial to complain of the Defendant's presence on the property. A negative inference is drawn by the absence of a complaining witness at the trial of this matter. It is clear that Planned Parenthood is the primary entity bothered by the Defendant's presence on the neighboring property and yet the

 

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property owner or manager of the apartment complex neither appeared in court nor signed anything indicating that they were bothered by the Defendant's presence on their property or that they had "No Trespass" signs on the premises.

The people failed to prove that the Defendant entered the apartment complex and remained without authority. Accordingly, the complaint against the Defendant is dismissed.