[*1] People v Durst 2013 NY Slip Op 52123(U) Decided on December 16, 2013 Criminal Court Of The City Of New York, New York County Statsinger, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 16, 2013
Criminal Court of the City of New York, New York County
The People of the State of New York
Robert Durst, Defendant.
For Defendant: Pryor Cashman LLP by Steven Rabinowitz, Esq.
For the People: Cyrus R. Vance, Jr., New York County District Attorney, by A.D.A. Lawrence Newman
Steven M. Statsinger, J.
Defendant, charged with Trespass (Penal Law § 140.05), moves to dismiss the Information as facially insufficient, asserting that the trespass it alleges is “de minimis,” and that the stay-away order that prompted the charge of trespass was too vague and remote in time to give the defendant sufficient notice.[FN1] For the reasons discussed below, the Court DENIES the motion to dismiss.
Defendant also moves for discovery and for recision or modification of the temporary orders of protection entered at arraignment. As to these motions, the motion for discovery is DENIED as moot, since the People have by now complied with their discovery obligation. The motions with respect to the orders of protection are also DENIED.
A. FACTUAL BACKGROUND
1. The Allegations
According to the accusatory instrument, Douglas Durst and the Durst Organization own three residences located on the block of West 43rd Street between Ninth and Tenth Avenues in Manhattan; specifically, 413 West 43rd Street, 441 West 43rd Street, and 443 West 43rd Street. On or about April 17, 2012, Dominick Manzi, a former New York City Police Officer employed as an agent of the Durst Organization, discovered the defendant crouched behind a tree on that block. Manzi identified himself and told the defendant that he “was to have no contact with” members of the Durst [*2]family and “that he was not allowed on their property.”
On or about June 2, 2013, Manzi reviewed security footage from the above-described buildings and saw that, on that date, defendant walked by the buildings “peering at the security cameras located at each one,” and that defendant also “walked up the exterior stairs” of 413 West 43rd Street without permission or authority.
2. Legal Proceedings
On August 16, 2013, defendant was arraigned on an Information – the accusatory instrument was sworn out by an investigator from the District Attorney’s office, but the People simultaneously filed the Supporting Deposition of Dominick Manzi – charging the defendant with one count of Trespass, in violation of Penal Law § 140.05. The Court set $5,000 bail, which defendant immediately posted, and adjourned the case to October 15, 2013, for trial. In addition, after hearing from the parties, the Court entered orders of protection in favor of some 13 members of the Durst family.
Defendant filed the instant motion off-calendar on September 30, 2013, and the People filed their response and a VDF in court on October 15; they had already turned over to the defense a copy of the video surveillance referred to in the Information.
On October 15, 2013, the Court heard oral argument on the motion to dismiss and reserved decision.
I. THE MOTION TO DISMISS
The Information alleges that in April of 2012, an agent of the Durst family and organization told the defendant that he was not allowed on their property, but that in June of 2013, defendant was captured on video walking up the stairs of a residential property that the Durst family owned. Since the Information sufficiently alleges both that defendant knowingly entered a premises and that he did so unlawfully, the motion to dismiss is denied.
1. Facial Sufficiency in General.
To be facially sufficient, an information must contain non-hearsay allegations providing reasonable cause to believe that the People can prove every element of the crime charged. CPL §100.40(1)(a)-(c). See also People v Dumas, 68 NY2d 729 (1986); People v Alejandro, 70 NY2d 133 (1988); People v McDermott, 69 NY2d 889 (1987); People v Case, 42 NY2d 98 (1977). Reasonable cause to believe that a person has committed an offense “exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it.” CPL §70.10 (2).
This standard does not require that the accusatory instrument allege facts that would prove defendant’s guilt beyond a reasonable doubt. People v. Jennings, 69 NY2d 103, 115 (1986). Rather, the instrument need only contain allegations of fact that “give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense.” People v Casey, 95 NY2d 354, 360 (2000). A court reviewing for facial insufficiency must assume that the factual allegations are true and must consider all reasonable inferences that may be drawn from them. CPL §§ 100.40, 100.15; People v Jackson, 18 NY3d 738, 747 (2012). See also Casey, 95 NY2d at 360. Under these standards, the Information here is facially sufficient.
[*3]2. The Information
Because this motion challenges the facial sufficiency of the Information, the entirety of the factual recitation is reproduced here: I am informed of all the following by Dominick Manzi:I am a former New York City Police Officer currently employed as an agent of the Durst Organization, and I have been providing security services for that organization since 2006.I am a custodian of property owned by the [sic] Douglas Durst, and the Durst Organization, including residences located at 441 West 43rd Street, 443 West 43rd Street, and 413 West 43rd Street, all in New York County.On or about April 17, 2012, I observed defendant on West 43rd Street, between 9th and 10th Avenues, in New York County. Defendant was crouched behind a tree, outside the residence at 413 West 43rd Street. I told defendant, in substance, that I was a security agent in the employment of Douglas Durst, and the Durst Organization, and that he was to have no contact with Douglas Durst, Helena Durst, Alex Durst, or the other immediately related family members, and that he was not allowed on their property.On or about June 2, 2013, I reviewed security camera footage from buildings located at the above-described residences. I observed that on or about June 2, 2013 at approximately 8:30 AM, defendant walked by the above described residences, peering at the security cameras located at each one, and that defendant walked up the exterior stairs of 413 West 43rd Street. Defendant did not have permission or authority to be on the steps of the residence of 413 West 43rd Street.In my capacity as an agent of the Durst Organization providing security services, I am familiar with the security cameras at those locations, and note, based on my training and experience, that these cameras record fairly and accurately, in real time; furthermore, I am a custodian of these recordings, which are made in the normal course of business.
The above was sworn to by Senior Investigator Thomas Lombardo of the New York County District Attorney’s office, and was corroborated by the Supporting Deposition of Dominick Manzi.
3. Trespass Defined
A person is guilty of Trespass, a violation, when he “knowingly enters or remains unlawfully in or upon premises.” Penal Law § 140.05. “Premises” is a general term that includes “any real property.” Penal Law § 140.00(1). Entering or remaining is unlawful when the person “is not licensed or privileged to do so.” Penal Law § 140.00(5).
A person who, “regardless of his intent, 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 [*4]enter or remain, personally communicated to him by the owner of such premises or other authorized person.” Id. With respect to private property, a person is ” licensed or privileged’ to enter when he has obtained the consent of the owner or another whose relationship to the premises gives him authority to issue such consent.” People v. Graves, 76 NY2d 16, 20 (1990). In the absence of such license or privilege, a person will generally be deemed to have entered or remained unlawfully on the premises. The People bear the burden of proving that an entry was unlicensed or unprivileged. See People v. Brown, 25 NY2d 374 (1969).
Finally, the People must also establish that the defendant acted “knowingly.” § 140.05. This adverb modifies both elements – the People must prove that the defendant entered a premises “knowingly”; that is, that he did not enter accidentally, and that he did so knowing that he lacked a license or privilege to enter. A “person who enters upon premises accidentally, or who honestly believes that he is licensed or privileged to enter is not guilty of any degree of criminal trespass.” People v. Basch, 36 NY2d 154, 159 (1975). Since the intruder must be aware of the fact that he has no license to enter the premises, even a mistaken belief in the right to enter precludes a finding that there was an unlawful entry trespass. People v. Uloth, 201 AD2d 926, 926 (4th Dept.1994); People v. Ranieri, 144 AD2d 1006, 1008 (4th Dept.1988) (same with respect to unlawful remaining); People v. Reed, 121 AD2d 574, 575 (2d Dept 1986).
4. The Information Sufficiently Alleges that Defendant Knowingly Entered Premises
The Information here sufficiently alleges that defendant knowingly entered premises. Without a doubt, the steps leading up to the entrance to a private residence constitute “premises.” And the allegation in the Information that defendant climbed those steps sufficiently pleads a knowing entry upon those premises, since even the most minimal physical invasion constitutes an “entry.” People v. King, 61 NY2d 550, 555 (1984) (any physical intrusion, “no matter how slight” is an “entry”). The Information alleges that defendant climbed the stairs leading to a private residence – that allegation sufficiently pleads an entry.
Defendant, rather than contesting the allegation as to the physical extent of the charged entry, instead focuses on its duration. He claims that the video surveillance referenced in the Information reveals that defendant was present on the steps of the brownstone located at 413 West 43rd Street for some “24 seconds.” To defendant, this “de minimis” act is insufficient an “entry” to constitute a trespass.
The Court disagrees. It should first be noted that the Information itself does not allege any fact relating to the duration of defendant’s presence on the brownstone steps. It alleges that defendant “walked up the exterior stairs of 413 West 43rd Street.” On its face, therefore, there is nothing de minimis about this allegation, and certainly nothing facially insufficient about it. Even assuming, arguendo, that the Court can consider the content of the video – defendant appended a copy to his motion papers – in addition to the face of the Information,[FN2] this would not change the outcome. It [*5]is not entirely clear that a “de minimis entry” defense to a charge of criminal trespass actually lies. See Standard Realty Assoc’s, Inc., v. Chelsea Gardens Corp, 105 AD3d 510, 510 (1st Dept 2013) (rejecting argument that dismissal of a civil trespass claim was warranted “because the encroachment of four inches was minimal. An invasion of another’s property or airspace need not be more than de minimis in order to constitute a trespass.”) (emphasis added). But if it does, it is an argument that must be directed the finder of fact at trial; it is not a basis for a claim of facial insufficiency.
The sole case that defendant relies on in support of this argument is People v. Cecere, 70 Misc 2d 510 (Batavia City Ct 1972), calling it “highly instructive.” There, defendant and his neighbor, the complainant, were enmeshed in a long-running dispute over the defendant’s dog. Id. According to the Information sworn out by the complainant, one afternoon, defendant entered the porch of complainant’s house to ask where the dog was; complainant answered and also told her to get off the porch. Id. at 511. The conversion continued for some time, with complainant repeatedly telling the defendant to get off his porch; complainant finally took the defendant by the arm and physically escorted her off. Id.
Contrary to defendant’s argument, Cecere actually supports the Court’s finding that the Information here is facially sufficient since, there, the court found that the facts described above sufficiently pled Trespass: “It would seem that the factual part of the information does support the charge of Penal Law [§] 140.05.” Id. at 512. While the court went on to conclude that the trial evidence was legally insufficient to support a criminal trespass, id. at 513-14, that is obviously not at issue here. The Information here is facially sufficient, just as it was in Cecere.
Moreover, it is also apparent that the legal theory of the prosecution in Cecere was different than that here. The claim in Cecere was that the defendant remained unlawfully on premises, not that she entered unlawfully. “It is quite evident from the testimony given at the trial that when the complainant asked the defendant to leave that she did leave. The fact that she did not leave as fast as the complainant might desire and the fact that the complainant may have taken her arm and assisted’ defendant off his property does not seem to constitute the criminal charge of Trespass.” Id. at 513. Accordingly, since Cecere is distinguishable from the instant case on these critical grounds,[FN3] that case in no way bolsters defendant’s argument that the Information here is facially insufficient as to the element of entry.
For all of the above reasons, the Court concludes that the Information sufficiently alleges that defendant “knowingly enter[ed] premises.”
5. The Stay-Away Notice Alleged in the Information Is Sufficient
Defendant argues with somewhat greater force that the stay-away notice alleged in the Information was both too vague and too remote in time to render any entry unlawful. These claims, however, should be addressed to the finder of fact at trial; the Information is facially sufficient with respect to the notice. [*6]
It is true, as defendant points out, that the steps leading up to a private residence are presumptively open to the public; indeed, rights of way such as stairs or a path are hornbook examples of a license for members of the public to enter private property. “[I]n our particular society it is normally proper to go to a neighbor’s house or at least to a neighbor’s front porch, ring a doorbell or knock upon a door and seek information without the danger of being charged with trespass.” Cecere, 70 Misc 2d at 512. See also People v. Powell, 54 NY2d 524, 531 (1981) (noting that such areas as a driveway, building lobby and common hallway are presumptively open to the public); Brown, 25 NY2d at 376 (license is presumed for properties open to the public); People v. Sanchez, 209 AD2d 265, 266 (1st Dept 1994) (unlocked vestibule to apartment building was open to the public); People v. Ennis, 37 AD2d 573, 573 (2d Dept. 1971) (reversing burglary conviction where defendant entered building through a basement that was open to the public).
But this license can be revoked. When the property’s owner or a person acting on the owner’s authority “personally communicate[s]” a “lawful” order not to enter, the intruder’s license or privilege to enter is extinguished. Penal Law § 140.00(5); People v. Zevin, 26 NY2d 783, 783 (1970) (upholding criminal trespass conviction of anti-war protestor who occupied midtown offices of a chemical company after having been told to leave by the firm’s office manager and public relations manager). A person who defies a lawful a stay-away order will have entered or remained unlawfully on the premises. Brown, 25 NY2d at 377; Leonard, 62 NY2d at 408.
Here, on its face, the Information sufficiently alleges both a stay-away order and defendant’s knowing defiance of that order. It alleges that Dominick Manzi, an “agent” of the Durst Organization and the Durst family, personally told the defendant that he was “not allowed on their property.” It also alleges that Manzi subsequently observed defendant, on video, defying that order.
Defendant attacks the stay-away order on two fronts: its timing and its content.[FN4] First, he alleges that the order was too remote in time to be effective, since it is alleged to have been issued some 14 months before the alleged entry. But age alone does not render a stay-away order, on its face, ineffective. For example, in People v. Warren, 173 Misc 2d 864, 865 (Monroe County Ct 1997), a trespass notice given in 1994 was effective some two years later, in 1996. Defendant is free to argue to the finder of fact at trial that the stay-away order was stale; but it is not so stale, on its face, as to render the Information insufficient.
Defendant also argues that the order was vague. It is true, as defendant observes, that a defendant can only be found guilty of trespass if the stay-away order can be “reasonably interpreted” to refer to the area in which the defendant was discovered. Sanchez, 209 AD2d at 266. The notice must be “”conspicuous,” People v. James, 28 Misc 3d 345, 349-50 (Crim Ct NY Co 2010), clearly convey the command to leave the premises, Brown, 25 NY2d at 377 and n2, and clearly describe both “who is excluded” and “what is prohibited.” People v. Oular, 177 Misc 2d 620, 625 (Crim Ct NY Co1998.)
Here, the notice described in the Information satisfies these strictures. First, the Information alleges that Manzi personally communicated the notice to the defendant, as in Cecere, 70 Misc 2d at 512. That notice also clearly indicated that defendant was “not allowed” on any property belonging to Douglas Durst, Helena Durst, Alex Durst, or their immediate family members. The notice clearly conveyed “who is excluded” – the defendant – and “what is prohibited” – his presence on any property [*7]that the named individuals owned. At the pleading stage, nothing more is required. This case is accordingly categorically different from those cited by the defendant in which the notice was inadequate. The notice here was clearly directed at the defendant, unlike the misplaced sign in Sanchez, 209 AD2d at 266, and considerably more detailed than the bare-bones “No Trespassing” sign in James, 28 Misc 3d at 351.[FN5] Nor is it deficient on its face because it does not specifically mention the steps leading up to 413 West 43rd Street. The notice clearly covered all private property owned by those mentioned in it; while the steps leading up to their properties might be presumptively open to the public, it is perfectly obvious that those steps are private property, as opposed to, for example, the sidewalk abutting them.
Finally, the notice described in the Information is not so defective as to render the Information facially insufficient because it failed to name every single Durst family member whose property was covered. If the People fail to prove beyond a reasonable doubt at trial both that 413 West 43rd Street was owned by anyone mentioned in the stay-away notice – Douglas Durst, Helena Durst, Alex Durst, their immediate family members – or fail to prove that defendant knew that 413 West 43rd Street was so owned, the finder of fact might well acquit him. See, e.g., People v. Dailey, 69 Misc 2d 691, 695 (Saratoga County Ct 1972) (People failed to prove trespass notice). But, at the pleading stage, the notice described in the Information is adequate.
The Court closes by noting that it hardly unheard of in trespass cases for the pleading to be sufficient but the trial evidence to be legally insufficient. Every trespass case that ends in an acquittal or a reversal for legal insufficiency began with a facially sufficient pleading. See, e.g., Dailey, 69 Misc 2d at 695; Brown, 25 NY2d at 377 & n2; Cecere, 70 Misc 2d at 512. Here, as in those cases, and for the above reasons, the Information is facially sufficient as to the stay-away notice.
The Information here is facially sufficient. It properly alleges both that defendant knowingly entered a premises owned by the Durst family, and that he did so in defiance of a lawful stay-away order that was communicated to him personally, and that was sufficiently clear that he could readily conform his conduct to it.
The motion to dismiss is accordingly denied.
II. THE DISCOVERY MOTION
As of this writing, the People have served the defense with what appears to be all of the required discovery materials, including a VDF and a copy of the surveillance video. Accordingly defendant’s motion for discovery is denied as moot.
III. THE MOTIONS DIRECTED AT THE ORDERS OF PROTECTION
At defendant’s arraignment, the People sought, and the Court entered – over defendant’s objection – orders of protection in favor of some 13 members of the Durst family, pursuant to CPL § 530.12. Defendant now seeks either modification or recision of those orders, or an evidentiary hearing, citing People v. Forman, 145 Misc 2d 115 (Crim Ct NY Co 1989). Those motions are [*8]denied.
Defendant has identified no new facts that might give rise to a reconsideration of the Court’s findings at the time the orders were entered. Given this, and because the orders of protection were entered in connection with the entry of the securing order, the Court lacks jurisdiction to review the orders. Forman, 145 Misc 2d at 119 (“A fundamental principle of the law governing securing orders is that a judge may not review a determination of bail or recognizance made by a judge of coordinate jurisdiction nunc pro tunc, and may only modify such a determination prospectively on the basis of new facts adduced.”)
Even if the Court could review, rescind, or modify the orders, however, it would not. The Court has reviewed the transcript of defendant’s arraignment; defendant had notice of the People’s request for the orders of protection and a full and fair opportunity to be heard and argue against them. Absent changed circumstances, he is entitled to no additional process. Defendant’s motions with respect to the orders of protection are accordingly denied.
For the foregoing reasons, defendant’s motions to dismiss and for discovery, and those addressed to the order of protection are is denied.
This constitutes the Decision and Order of the court.
Dated: December 16, 2013_______________________
New York County, New YorkSteven M. Statsinger
Judge of the Criminal Court Footnotes
Footnote 1: In reaching this decision, the Court has considered, in addition to the relevant statutes and case law, defendant’s Omnibus Motion, the People’s response and defendant’s Reply Affirmation, filed with the Court on December 6, 2013. In addition, the Court heard oral argument on October 15, 2013.
Footnote 2: This question is a close call, but not a call that the Court needs to make. While the content of the video is mentioned in the accusatory instrument, the video is not, strictly speaking, incorporated by reference into that document, and is not mentioned at all in Manzi’s Supporting Deposition. In addition, it does not appear that the video was filed with the Court at defendant’s arraignment. Cf. People v. Grabinski, 189 Misc 2d 307, 308 (App Term 2d Dept 2001). Nevertheless, since the content of the video would not change the outcome of the Court’s decision, the Court declines to rule on this particular question.
Footnote 3: The Court also notes that Cecere relies heavily on a case, People v. Lawson, 38 Misc 2d 611 (Crim Ct NY Co 1963), without recognizing that the Appellate Term reversed that decision. See People v. Lawson, 44 Misc 2d 578 (App Term 1st Dept 1964). This further undermines Cecere’s persuasive force.
Footnote 4: Defendant does not argue that the stay-away order was unlawful.
Footnote 5: Defendant also cites Brown in support of this argument, but not accurately. Brown did not turn on a finding that the warning “get lost” was inadequate; it turned on the fact that there was insufficient evidence that the defendant defied the order. 25 NY2d at 377 (“the complainant’s own testimony indicates that the defendant replied, “Okay,’ and turned and left the office, thereby complying’ [with] rather than defying'” the order).