The following papers numbered 1 to 3 were read and considered on the defendant’s motion to dismiss. Papers Numbered Notice of Motion and Affidavits Annexed 1 Affirmation in Opposition 2 Replying Affidavits 3 The defendant stands charged with one count of Criminal Trespass in the Second Degree in violation of Penal Law §140.15 and one count of Criminal Mischief in the Fourth Degree in violation of Penal Law §145.00. The accusatory alleged that on November 24, 2021, at 32 Fairfield Road, Yonkers, New York the defendant knowingly entered or remained in the dwelling of the complaining witness located at 32 Fairfield Road, Yonkers, New York by allegedly breaking down the door to gain entry without permission or consent and remaining inside. The accusatory also alleged that the defendant removed security cameras from the exterior and interior of the home, causing them to become inoperable. (Superseding Misdemeanor Information dated February 17, 2022). The defendant now moves to dismiss pursuant to Criminal Procedure Law §170.30. The defendant argued as part owner of the property where the incident occurred, he cannot and did not enter the house unlawfully. Additionally, the defendant contends that he cannot be convicted of Criminal Mischief in the Fourth Degree as there was no damage to the property in question. An accusatory instrument must contain “facts of an evidentiary character supporting or tending to support the charges” (CPL §100.15[3]). In addition, the accusatory is sufficient on its face if the factual part of the instrument “provide[s] reasonable cause to believe that the defendant committed the offense charged….” (CPL §100.40[1][b]). This requirement does not require either proof beyond a reasonable doubt, or even the level of legally sufficient evidence necessary to survive a motion to dismiss based on the proof presented at trial (People v. Smalls, 26 NY3d 1064, 1066 [2015]). If the accusatory instrument gives the accused sufficient notice to prepare a defense and are adequately detailed “they should be given a fair and not overly restrictive or technical reading” (People v. Casey, 95 NY2d 354, 355 [2000]). In the present action, the People are required to plead by non-hearsay facts that the defendant knowingly entered or remained unlawfully in a dwelling (CPL §140.15). To support the Criminal Mischief in the Fourth-Degree count, the People must also plead, by non-hearsay facts, that the defendant “having no right to do so nor any reasonable ground to believe “that he had such right, intentionally damaged the property of another person” (PL §145.00). The People argued that the Superseding Misdemeanor Information lays out non-hearsay facts that establish every element of these crimes by way of the Supporting Deposition and the Owner’s Deposition and satisfies the facial sufficiently requirement of CPL §100.40. The issue before the court is whether the defendant as part owner of the property, can be guilty of the charged offenses. Notably here, the defendant and complaining witness are siblings who share an equitable interest in the property at 32 Fairfield Road, Yonkers, New York through the Last Will and Testament of their late mother. The defendant claims he has lived in the subject premises for the past forty-two years but that his sister, the complaining witness herein has not lived there in the past twenty-five years. In support the defendant cites to the owner’s deposition which lists the complaining witnesses address as “N/A”. A person is guilty of Criminal Trespass in the Second Degree when the evidence demonstrates that the person “knowingly enter[ed] or remain[ed] unlawfully in a building or dwelling.” Even assuming the property was the complaining witness’ “dwelling” and viewing the evidence in the light most favorable to the People, the evidence is insufficient to establish that the defendant “enter[ed] or remain[ed] unlawfully in [the] dwelling” (Penal Law §140.15[1]). “A person ‘enters or remains unlawfully’ in or upon a premises when he is not licensed or privileged to do so (Penal Law §140.00[5]). The People argue that a defendant who enters a residence can be convicted of Criminal Trespass even if she or she is a named lessee of the property if an order of protection has been issued directing the defendant to stay away from the complainant’s home (People v. Scott, 760 NYS 2d 828, 831 [Sup. Ct. Kings County, 2003]).However, the People acknowledge that the Order of Protection here, which was issued by the Westchester County Family Court did not contain a provision directing defendant to stay away from the premises. Rather, it was a “refrain from” only. Further there is no indication that the property was the dwelling of the complaining witness, only that she has an equitable interest in same. As the property is the defendant’s home and as he has an equitable interest in same and as there was no order precluding him from being on the premises, this branch of the defendant’s motion is granted. The charge of Criminal Trespass in the Second Degree is hereby dismissed. Turning then to the Criminal Mischief in the Fourth-Degree charge, this requires that the property damaged be owned by a person other than the person charged with the crime. (Penal Law §145.00[1]); People v. Person, 239 AD2d 612, 613 (2d Dept 1997) citing People v. Schmid, 124 AD2d 896, 897 [3d Dept., 1986]; People v. Kittel, 36 AD2d 730 [2d Dept, 1971]). The defendant acknowledged removing the security cameras but denied any allegation that they were damaged. Supporting this contention is the Owners Deposition which states that the damage to the security cameras was unspecified, listed as “N/A”. The People allege that the defendant caused extensive damage to the door in that the lock hinge was forcefully askew, and the wood splintered in multiple places. Notably, the defendant does not deny these contentions. Further and notwithstanding the foregoing, the definition of “property of another” as that term is used in PL §145.00, §145.05, §145.10 and §145.12 includes “all property in which another person has an ownership interest, whether a person who damages such property, or any other person, may also have an interest in such property (Penal Law §145.13). As such, the defendant’s equitable interest in the home is not a basis upon which to dismiss this charge. This branch of the defendant’s motion is denied as to the damage to the door. The foregoing constitutes the decision of the Court. Dated: August 2, 2022
