OPINION OF THE COURT
He moved to suppress physical evidence claiming that the evidence was obtained in a constitutionally impermissible manner.
The People opposed the motion.
A hearing was held. Police Officer Matthew Murray and defense witness Robert Coella testified. The court credits the testimony of the police officer in all relеvant and pertinent aspects, but finds portions of the testimony of witness Robert Coella unworthy of belief.
Findings of fact
On August 31, 1994, Police Officer Murray of the Queens South Task Force respondеd to a radio transmission requesting assistance in the arrest of members of a coalition group who were inside a fenced area of the DeFoe Construction sitе at the Whitestone Expressway and Boat Basin Road. This area was the property of the New York City Parks Department.
According to Officer Murray, a coalition is a local group which tries to extort work from construction companies by disrupting sites. Over the past few months, Officer Murray had responded to this construction site and others to assist with problems caused by coalitions.
When Officer Murray arrived at the location, he observed a school bus inside the fenced-in construction site and 15 to 18 peоple against the bus being detained by the 110th Precinct Anti-Crime Unit. At this point, Lieutenant Puma assigned Officer Murray to the arrest team and instructed him to arrest defendant. Officer Murray plaсed defendant under arrest for criminal trespass and upon a pat-down search discovered 41 jumbo vials of crack cocaine in his left front pocket.
Robert Coella, a superintendent for DeFoe Corporation, testified that on August 30, 1994, there had been threats made to him by the Queens Community Coalition Group and he was expеcting trouble at the construction site the following day. Mr. Coella then telephoned Mr. Wright of the Link Coalition Group and requested help with the situation. He also called thе police and requested their assistance with the Queens Community Coalition.
Mr. Coella stated that he had become familiar with Link when DeFoe Construction did work on the Kosсiusko Bridge.
On August 31, 1994, members of Queens Community Coalition came to the DeFoe Construction site and after a heated argument with Mr. Coella, physically abused him. Mr. Coella believed that during the assault some of his fellow workers had telephoned the police and Link requesting that they come to the location. When the police and Link members arrived, the Queens Community Coalition members had already fled. At this point, the members of Link were on the premises.
Mr. Coella told the police that thе Link members were not the men who had caused him trouble. He also stated that he "believed” that defendant was a member of Link.
Defendant and other Link members on the construсtion site were arrested by the police.
Conclusions of law
An arrest for a crime is authorized whenever the officer has reasonable cause to believe that it was committеd. The arrest of an individual on less than probable cause is prohibited (Dunaway v New York,
Under the "fellow officer” rule, an arresting officer acts with probable cause when (1) he аcts on the basis of information supplied by another officer which itself or together with information known to the officer establishes probable cause; or (2) he arrеsts a defendant at the direction of another officer who has probable cause (People v Brnja,
A person is guilty of criminal trespass in the third degree when he knowingly enters or remаins unlawfully in a building or upon real property which is fenced or otherwise enclosed in a manner designed to exclude intruders (Penal Law § 140.10). "A person 'enters or remains unlawfully’ in оr upon premises when he is not licensed or privileged to do so” (Penal Law § 140.00 [5]). Of course, a person who gains admittance to premises through intimidation or by deception, trick or arti
Additionally, whenever the lessee or occupant other than the owner of any premises uses or occupies the same for any illegal business, the lease or agreement for occupancy becomes void (Real Property Law § 231; 1165 Broadway Corp. v Dayana of N. Y. Sportswear,
Moreover, onе who closes his eyes to reality and asserts an "honest belief’ or acts on advice of another to remain where one is not privileged to be is still responsible fоr trespass. A defense is stated only when one acts in good faith in an honest but mistaken belief that one’s continued occupation of the premises is not unlawful (People v Stevens,
Ultimately, it is for the fact finder to determine whether a defendant was privileged to enter and remain on the premises by means of a valid consent or by an unlawful act (People v Czerminski,
In this case, Offiсer Murray responded to a radio transmission requesting assistance at the DeFoe Construction site near Shea Stadium. Upon his arrival, he observed defendant on the private construction site among members from a local coalition group who were unlawfully present. The officer had previously been involved in similar arrests of coalition group members and was familiar with the activities of such groups. Specifically, he knew that they would try to extort work for their members by coming to construction sites аnd disrupting the work area. Officer Murray was instructed by Lieutenant Puma to be part of the team that would process the arrest of these men for criminal trespass.
Based uрon all the facts known to Officer Murray, he had probable cause to arrest defendant for criminal trespass.
Moreover, the testimony of Robert Coella does not compel a different result. First, Mr. Coella was not able to affirmatively
In any event, whether defendant was a Link member is irrelevant to the propriety of the arrest. The record establishes that any alleged consent to enter the constructiоn site given to members of Link was achieved by means of intimidation and coercion. Indeed, the Link Coalition assists construction companies by forcing them to accеpt a few minority workers from a local coalition in exchange for their protection from any future disruption. Thus, any permission or authority to enter a site is a result оf fear of future reprisals and is not voluntary. Accordingly, there is no legitimate "license or privilege” as defined by Penal Law § 140.00 (5). To find otherwise would reduce the law to mobstеr mentality.
Additionally, if Link was engaging in illegal activity with the support and consent of Coella or DeFoe Construction Company, this rendered the lease with the New York City Parks Department void (Real Property Law § 231). Thus, by operation of law, defendant could not have been licensed to be on the premises based upon any "consent” given tо him to enter fenced-in New York City property.
Furthermore, the question of whether defendant had a license or privilege is an issue for the fact finder at trial and not for the determination of probable cause.
Because there was probable cause, the vials recovered from defendant’s person were incident to a lawful arrest and, therefore, admissible.
Accordingly, defendant’s motion is denied.