## Facts

- Police conducted a “vertical patrol” at Taft Houses, a NYCHA development of nine nearly identical buildings in Manhattan.
- An officer observed Derek Luke enter the building at 65 E. 112th St. but could not say how he gained entry; entrance doors were not always locked.
- The officer could not recall whether the entrance locks worked that day or exactly where “no trespassing” signs were posted.
- The officer saw Luke in hallways on multiple floors and questioned him.
- Luke said he was visiting an “aunt” who was a tenant and also had friends in the building, but he could not provide an apartment number or the names of the aunt or friends at that moment.
- Luke was arrested; a search recovered no drugs or weapons.
- At trial, Luke testified he intended to visit a longtime family friend (whom he called his aunt) for dinner and to help with her computer but mistakenly entered the wrong Taft Houses building across the street.
- The friend testified consistently, confirming the planned visit and that, in the dark, distinguishing between the nearly identical buildings would be difficult for someone unfamiliar with the area.

## Issues

1. Whether the evidence proved beyond a reasonable doubt that the building or property was “fenced or otherwise enclosed in a manner designed to exclude intruders,” as required for third-degree criminal trespass under N.Y. Penal Law § 140.10(a).
2. Whether the evidence proved beyond a reasonable doubt that Luke knowingly entered or remained unlawfully (without license or privilege) in the building.

## Decision

- The Appellate Term reversed the conviction on the law and the facts, dismissed the accusatory instrument, and ordered remission of the fine and surcharge if paid.
- The court held the People failed to prove the statutory “enclosure” element beyond a reasonable doubt.
- The court also found the proof insufficient to show Luke knowingly lacked license or privilege to be in the building, given the corroborated explanation that he was attempting to visit a tenant but entered the wrong building.

## Legal Principles

- Third-degree criminal trespass under N.Y. Penal Law § 140.10(a) requires proof that the defendant knowingly entered or remained unlawfully in a building or on real property that is “fenced or otherwise enclosed in a manner designed to exclude intruders.”
- “Enters or remains unlawfully” requires proof the defendant lacked license or privilege; an invitation from a tenant, or a reasonable belief of permission, may supply a license or privilege.
- On legal sufficiency review, evidence must allow a rational factfinder to find each element beyond a reasonable doubt when viewed favorably to the prosecution.
- On weight-of-the-evidence review, an appellate court may set aside a verdict that is against the weight of credible evidence.

## Conclusion

The conviction was reversed and the case dismissed because the record did not establish that the NYCHA building was sufficiently “enclosed” to meet § 140.10(a) and did not prove beyond a reasonable doubt that the defendant knowingly entered or remained unlawfully, particularly in light of corroborated evidence that he intended to visit a tenant but entered the wrong, nearly identical building.


People v. Luke, 37 Misc. 3d 73, 955 N.Y.S.2d 465 (App. Term 1st Dep’t 2012)