An individual who has been issued a “persona non grata” letter by a State University president, that banishes the individual from that part of the university campus normally “open to the public”, may not be convicted of trespassing for entering the campus when no proof is adduced to show that the banishment order was lawful. To sustain the burden of showing the order’s lawfulness, the People must demonstrate that, given the nature and purpose of the property, the particular exercise of the power to exclude had a legitimate basis. The purpose would not be legitimate if, for example, its enforcement unduly infringed upon an independent statutory or constitutional right of the defendant to be present on the property.
Defendant was an enrolled student at the State University of New York at Binghamton (SUNY-Binghamton) from time to time over the past 10 years. On February 23, 1981, when defendant was no longer a student, the president of SUNY-Binghamton issued an order banishing him from campus by declaring him “persona non grata”. This letter informed defendant that he would be subject to arrest if he returned to the campus.
SUNY-Binghamton law enforcement personnel discoverеd defendant at the Campus Pub on October 23, 1981. The Pub is located in the University Union building on the SUNY-Binghamton campus. Defendant was arrested and charged by information with criminal trespass in the third degree (Penal Law, § 140.10) for his allegedly unlawful presence on campus.
A nonjury trial was held in Vestal Town Court on October 19, 1982. Prior to trial, defendant and the People stipulated that: in February, 1981, defendant received a letter from SUNY-Binghamton’s president declaring him “persona non grata”; defendant was not a student, faculty member, or employee at the school at that time; notwithstanding this warning, defendant was present on the campus in October, 1981; and “[a]t all times pertinent to this case, the State University of New Yоrk at Binghamton, the University Union building, and the Campus Pub were
This court now reverses.
A prosecution for criminal trespass in the third degree may be maintained against a person who “knowingly enters or remains unlawfully in a building or upon real property” (Penal Law, §140.10). Generally, a person will be deemed to “[e]nter or remain unlawfully” on property when he or she does so without license or privilege (Penal Law, § 140.00, subd 5). When the property is “open to the public” at the time of the allеged trespass, however, the accused is presumed to have a license and privilege to be present (id.). In such a case, the People have the burden of proving that a lawful order excluding the defendant from the premises issued, that the order was communicated to the defendant by a person with authority to make the order, and that the defendant defied that order (id.; see People v Brown,
At the outset, we reject defendant’s claim that SUNY-Binghamton is not generally empowered to exclude persons from the university campus. Article 129-A of the Education Law governs the regulation of college campuses and other college property used for educational purposes. Beyond a mere grant of power, it requires “[t]he trustees or other governing board of every college chartered by the regents or incorporated by special act of the legislature” to
Pursuant to this statutory directive, the Board of Trustees of the State University of New York рromulgated rules intended to “prevent abuse of the rights of others and to maintain * * * public order appropriate to a college or university campus” (8 NYCRR 535.1; see, generally, 8 NYCRR part 535). Among the authorized penalties that may be imposed for a violation of the rules of conduct (see 8 NYCRR 535.5) is to have the offending person’s “authorization to remain upon the campus or other property withdrawn” and to direct that person to “leave thе premises” (8 NYCRR 535.5 [a]). Failure to voluntarily comply with such a directive will subject the person to ejection (id.). It is clear, therefore, that administrators of SUNY-Binghamton have the general power to exclude from the campus рersons who do not abide by the rules of conduct. A reasonable and practicable means of effectuating that policy could be to advise an individual that, due to past conduct, he or she is no longer welcоme on the campus and will be subject to arrest for trespassing upon return. Exclusion is a natural concomitant to the power to withdraw a person’s authorization to remain on the college campus.
There is alsо no merit to defendant’s argument that any order of exclusion would be unlawful, as violative of due process, absent the holding of a hearing prior to its issuance. Although the campus at SUNY-Binghamton may be open generally for thе enjoyment of the public, defendant, who concededly is not a student or employee at the campus, has identified no “property” or “liberty” interest in being present on campus grounds that he could be lawfully deprived of only after being accorded a hearing (cf. Board of Curators, Univ. of Mo. v Horowitz,
That SUNY-Binghamton may enjoy the general right to exclude persons from its cаmpus and that it may do so in some cases without first holding a hearing is not determinative of this appeal, however. It is a wholly different question whether the People have satisfied their burden of proving every element of the chаrged offense. The required proof in this case includes the component that the particular order of exclusion was lawful and, hence, that defendant’s defiance of that order, after notice, would subject him to сriminal liability for trespass.
In this case, defendant and the People stipulated that the SUNY-Binghamton campus was at all times “open to the public” within the meaning of section 140.00 of the Penal Law (see, also, People v Taylor,
Although, as administrators of SUNY-Bing-hamton have broad power and great flexibility in maintaining order and securing the safety of others on the school campus (see People v Meadow,
To satisfy its burden of proof with respect to the element of the crime that a “lawful order not to еnter” the property issued, the People must demonstrate that the particular order of exclusion had a legitimate basis and that, considering the nature and use of the subject property, its enforcement did not unlawfully inhibit or сircumscribe the defendant from engaging in constitutionally or statutorily protected conduct. When, as in this case, the subject property is publicly owned and maintained, the People may not satisfy their burden of proof on this issue by relying on a presumption that the public official authorized to maintain order on campus discharged his or her responsibility, in the particular instance, in a lawful manner (see People v Session,
In the instant case, the People offered no evidence at trial to demonstrate that the issuance of the particulаr “persona non grata” letter to defendant, banishing him from the SUNY-Binghamton campus, was lawful. There is no evidence in the record thát would indicate that the order to remain off the property had a legitimate purpose, ration
Accordingly, the order of the County Court should be reversed, the conviction vacated, and the information dismissed.
Order reversed, etc.