People v. Finch , 23 N.Y.3d 408 ( 2014 )

OPINION OF THE COURT

Smith, J.

We hold that, where a defendant has unsuccessfully argued before trial that the facts alleged by the People do not constitute the crime charged, and the court has rejected the argument, defendant need not specifically repeat the argument in a trial motion to dismiss in order to preserve the point for appeal. We also hold that the argument defendant makes here has merit, and requires reversal of his conviction for resisting arrest.

I

Calleasha Bradley was a tenant at Parkside Commons, a federally-subsidized apartment complex in Syracuse. Defendant, who did not live in the complex, was the father of Bradley’s child. Bradley and defendant met with Nicole Smith, the Park-side Commons property manager, and asked her to allow defendant to come on the property to visit his son. After verifying that defendant had not “had any trouble” for a period of about two years, Smith gave him permission to visit, but warned him that, because of a “no loitering policy,” defendant “would need to be with his son, not at various points of the property doing other things.”

On April 28, 2009, James Quatrone and Todd Hood, police officers patrolling Parkside Commons, saw defendant and three other adults in the lobby of one of the buildings, with a marijuana cigarette in the vicinity. The officers arrested defendant for trespassing. Bradley was not present during the April 28 arrest, but while Quatrone was waiting with defendant for a car to the Justice Center, Bradley emerged from a building, made a video (but not audio) recording of the event on her cellphone, and expressed her unhappiness about the officers’ actions in strong terms. While witnesses’ recollections of what was said differ, the evidence (described in more detail below) shows conclusively, in our view, that Quatrone knew as of April 28 that defendant was on the property with Bradley’s consent.

After the April 28 incident, Smith revoked the permission she had given defendant to visit his son, and informed the police that defendant was no longer allowed at Parkside Commons. Defendant nevertheless continued to enter the property, at Bradley’s invitation. Quatrone arrested him twice more for trespassing, on May 12 in the lobby of another building and on May 27 in a parking lot.

The May 27 arrest led to the resisting arrest charge that is the subject of this appeal. On being told that day that he was under arrest, defendant replied: “You can’t arrest me.” Quatrone told defendant to turn around and tried to pull his arm behind his back; defendant tried to walk away. Quatrone grabbed him and, with the help of other officers, forcibly handcuffed him. Defendant made the handcuffing difficult by pressing his arm against the hood of a car with his body.

Defendant was charged with three counts of criminal trespass and one of resisting arrest. A jury in City Court acquitted him of the first trespass charge, relating to April 28, but convicted him on the remaining counts.

County Court reversed defendant’s convictions for trespass, but affirmed the resisting arrest conviction. In County Court’s view, defendant could not be a trespasser because he was Bradley’s invited guest: “[A] tenant with a lease to a specific apartment in an apartment complex has the inherent right to invite guests and . . . those guests . . . are licensed and privileged to be in or upon the property” (internal quotation marks omitted). County Court concluded, however, that Quatrone had probable cause to arrest defendant and that therefore the resisting arrest conviction was valid.

A Judge of this Court granted defendant leave to appeal (People v Finch, 20 NY3d 986 [2012]). The People cross-moved for leave to appeal from the reversal of the trespass convictions, but the cross motion was dismissed as untimely (20 NY3d 1098 [2013]), and the resisting arrest conviction is therefore the only one before us. We agree with defendant that the evidence is insufficient to support that conviction, and we reverse.

II

Before reaching the merits, we must decide whether defendant has preserved for appeal his argument that Quatrone lacked probable cause to arrest him for trespass on May 27 because Quatrone knew that Bradley had invited defendant to be on the premises. We hold that the argument is preserved.

Defendant made that argument at virtually the earliest possible moment — at arraignment in City Court on one of the criminal trespass charges. Challenging the sufficiency of the accusatory instrument, defendant argued that the police failed “to understand why somebody might be there . . . who might have license to be there by the tenants.” Later in the same proceeding, he argued that the court “should dismiss” the charge unless defendant had been excluded “in compliance with [Bradley’s] rights as tenant.” He added that the court should be “even more skeptical” of the case because “this woman who lives in that, saying he’s got a right to be there . . . should be good enough. Who’s got a right to say that he can’t be there? It’s her premises. She’s entitled to have guests and family members there.”

The City Court Judge responded by specifically rejecting the view that Bradley could consent, over management’s objection, to defendant’s presence: “What the law says is . . . either she makes her peace with the management or she moves out ... if she said, T want to have this person here because he’s the father of my child,’ she makes her peace with the management.” Unlike our dissenting colleagues (see dissenting op of Abdus-Salaam, J. at 429-430 [hereafter, the dissent]), we do not read this ruling as being directed solely to the conditions of pretrial release; the ruling followed only moments after defense counsel’s request: “you should dismiss.” But the more important point is that City Court ruled definitively on the legal argument that defendant makes on this appeal. Having received an adverse ruling, defendant did not specifically urge the same theory again in support of his motion to dismiss for insufficiency of the evidence at trial. But he did not have to: once is enough (People v Mahboubian, 74 NY2d 174, 188 [1989] [insufficiency claim preserved by pretrial motions, “even though defendants did not specifically seek dismissal on that basis at the close of the People’s evidence”]).

As a general matter, a lawyer is not required, in order to preserve a point, to repeat an argument that the court has definitively rejected (People v Jean-Baptiste, 11 NY3d 539, 544 [2008] [having made a specific motion to dismiss for legal insufficiency, defendant was not required to make the same point as an exception to the charge]; People v Payne, 3 NY3d 266, 273 [2004] [“We decline to . . . elevate preservation to a formality that would bar an appeal even though the trial court . . . had a full opportunity to review the issue in question”]). When a court rules, a litigant is entitled to take the court at its word. Contrary to what the dissent appears to suggest, a defendant is not required to repeat an argument whenever there is a new proceeding or a new judge.

It is true that a challenge to the sufficiency of the accusatory instrument at arraignment is conceptually different from a challenge based on the proof at trial, and that often an issue decided in one proceeding will not be the same as the issue presented in another. But here the issue was the same. It is also true that defendant’s initial argument was addressed to a trespass count and not the probable cause element of the resisting arrest count. But once the court held that an invited guest whose license has been withdrawn by management is a trespasser, it necessarily followed that Quatrone did not lack probable cause to arrest defendant for trespass on the ground that he was an invited guest. The dissent’s contrary view rests on a simple confusion. Of course the court’s pretrial ruling could not resolve every aspect of “the fact-intensive issue of probable cause” (dissent at 431), and we do not suggest that it did. Our point is simply that the trial court could not, without abandoning the ruling it had already made, have accepted the specific argument that, in the dissent’s view, defendant should have repeated when moving to dismiss the count at trial. It is clear to us that the repetition would have been an unnecessary ritual, and nothing the dissent says persuades us otherwise.

The dissent also points to the seeming oddity that defendant preserved the argument on which we now hold his arrest unlawful “weeks before [the arrest] happened” (dissent at 418). But there is nothing really odd about it. The resisting arrest count was properly joined with, and tried with, the three trespass counts, and the identical argument was applicable to all four counts. Neither authority nor common sense gives any support to the idea that in such a situation a defendant must, to preserve an already rejected argument, make it again whenever a new count (whether based on earlier or later events) is added. Not even the dissent goes that far; the dissent asserts not that the argument we find preserved was addressed to the wrong counts, but that it was made at the wrong time — before trial, not during trial. We have explained why we disagree.

The dissent relies on two of our precedents, People v Gray (86 NY2d 10 [1995]) and People v Hines (97 NY2d 56 [2001]), both of which deal with the need to preserve insufficiency claims by a trial motion to dismiss. Neither of those cases addresses the precise issue here — whether a sufficiency argument specifically made and rejected before trial must be repeated at trial. This case does not require us to reconsider either Gray or Hines, and we do not do so, but we decline to read those cases as broadly as the dissent does.

We held in Gray “that where a defendant seeks to argue on appeal . . . that the People have failed to establish the defendant’s knowledge of the weight of drugs, preservation of that contention is required by an appropriate objection” (86 NY2d at 18 [footnote omitted]). We further held that an “appropriate objection” meant one that specifically identified the flaw in the People’s proof. Thus a general motion to dismiss that did not specifically raise the knowledge-of-the-weight issue was inadequate to preserve it. We explained that this requirement enables trial courts to avoid error, and also alerts the People to the claimed deficiency in the proof, thus giving them a chance to correct it and so advance “the truth-seeking purpose of the trial” (id. at 21).

We do not retreat from — indeed, we reaffirm — Gray’s statement of the importance of, and the reasons for, the preservation rule. Nor do we doubt that a specific claim of insufficiency was properly required in Gray, and is required in most other cases. This does not imply, however, that a specific objection in a trial motion to dismiss is always necessary where, as is true in this case, such a requirement will not significantly advance the purposes for which the preservation rule was designed. There will be cases, of which this is one, where the lack of a specific motion has caused no prejudice to the People and no interference with the swift and orderly course of justice.

Insistence on specificity in a dismissal motion is amply justified where the People might have cured the problem if their attention had been called to it. This may well have been true in Gray itself; if the defendant there had flagged the knowledge-of-narcotic-weight issue, the People might have reopened their case to supply the missing proof. The specificity requirement is also justified in another class of cases — those involving alternative grounds for criminal liability, where a defendant’s failure to point out a flaw may lead to his conviction on an unsound theory, though a sound one was available. Thus in considering the appeals of defendants convicted of depraved indifference murder before our cases drew a clear distinction between that crime and intentional murder, we have enforced the rule of Gray strictly, mindful of the possibility that a less strict approach could benefit defendants “who committed vicious crimes but who may have been charged and convicted under the wrong section of the statute” (People v Martinez, 20 NY3d 971, 977 [2012, Smith, J., concurring], quoting People v Suarez, 6 NY3d 202, 217 [2005, G.B. Smith, Rosenblatt and R.S. Smith, JJ., concurring]; see also People v Jean-Baptiste, 11 NY3d 539, 542 [2008]; People v Hawkins, 11 NY3d 484 [2008]).

But while the rule of Gray is generally a sound one, an over-broad application of it would raise the disturbing possibility that factually innocent defendants will suffer criminal punishment for no good reason. Thus in this case, it seems highly likely not merely that the People failed to prove defendant guilty of criminal trespass and resisting arrest, but that he was actually innocent of those crimes. As we explain below, no one now disputes that Bradley had a right to invite defendant onto the Parkside Commons property as her guest, unless some special factor, such as a lease provision or regulation, deprived her of that right. The People produced no evidence that any such lease provision or regulation existed, and that omission could hardly have been an oversight — defendant asserted a defense based on his status as Bradley’s guest at the very outset of the case, and also emphasized the point during the presentation of evidence at trial, though he did not specifically repeat it at trial in his dismissal motion. There is no reason to think that the absence of that repetition prejudiced the People at all; the People assert no such prejudice — indeed, they do not advance here the preservation argument that the dissent adopts. If we were to agree with the dissent that Gray requires us to affirm in this case, we would in all likelihood be upholding the conviction of an innocent man, without significantly advancing any valid purpose.

The dissent responds by saying, essentially, that procedural rules do sometimes require us to uphold convictions of people who may be innocent, and that the task of avoiding such injustices must sometimes be left to the Appellate Division, which has interest-of-justice jurisdiction (dissent at 435-436). True enough; but procedural rules should be so designed as to keep unjust results to a minimum. We think our interpretation of Gray serves that end better than the dissent’s.

In Hines, we said that a defendant who had made a specific motion to dismiss at the close of the People’s case, and had thereafter called witnesses and testified in his own behalf, had not preserved the argument that he specifically made because he did not make another motion to dismiss for insufficiency at the close of all the evidence. Judge George Bundy Smith, the author of Gray, dissented from this conclusion, asserting that “[s]ince defendant raised the sufficiency issue at the close of the People’s case, he can raise it again on an appeal” (97 NY2d at 66 [Smith, J., dissenting]). Another Judge Smith, the author of the present opinion, has twice expressed doubt that Hines was correctly decided (see Payne, 3 NY3d at 273 [R.S. Smith, J., concurring]; People v Kolupa, 13 NY3d 786, 787 [2009, Smith, J., concurring]; see also People v Santiago, 22 NY3d 740 [2014] [mentioning, but not addressing, an argument that Hines should be overruled]). But we need not consider now these criticisms of the Hines result. We hold only that Hines does not establish a general rule that every argument once made and rejected must be repeated at every possible opportunity. Specifically, the argument that defendant here made at arraignment did not need to be repeated in his trial motion to dismiss.

III

On this appeal, the People do not challenge County Court’s conclusion that defendant, having been invited onto the Park-side Commons premises by Bradley, was not a trespasser, but do argue that there is sufficient evidence that he committed the crime of resisting arrest on May 27. A person commits resisting arrest when he “intentionally prevents or attempts to prevent a police officer . . . from effecting an authorized arrest” (Penal Law § 205.30). An arrest is “authorized” if, but only if, it “was premised on probable cause” (People v Jensen, 86 NY2d 248, 253 [1995]; see People v Peacock, 68 NY2d 675, 676-677 [1986]). Thus the merits question before us is whether, on the assumption that defendant was in fact innocent of criminal trespass, there was nevertheless sufficient evidence for a jury to find, beyond a reasonable doubt, that Quatrone had probable cause on May 27 to believe him guilty of that crime. We conclude that the evidence of probable cause was insufficient.

It is critical to our holding that on April 28 — a month before the arrest now in issue — defendant’s status as Bradley’s guest, and his and Bradley’s claim that he was therefore entitled to enter the property, were forcefully brought to Quatrone’s attention. The April 28 arrest caused Bradley to come out of her building, “yelling” in Quatrone’s description, “screaming” in that of Quatrone’s fellow officer Hood. Hood was asked if Bradley was screaming “You can’t arrest him. He’s my guest. Why are you arresting him? He’s not trespassing.” Hood disputed the words, but not the substance: “No. It was much more obscene than that.”

Quatrone did not recall being told on April 28 that defendant claimed to be Bradley’s guest though he admitted that defendant claimed to be watching his son two weeks later, on May 12 — a rather clear indication that he claimed to be there with the approval of the child’s mother. But in light of the undisputed fact, reflected in a video recording, that Bradley enthusiastically espoused defendant’s cause in Quatrone’s presence, we do not see how a jury could find, beyond a reasonable doubt, that Quatrone did not know on April 28 that defendant was present with Bradley’s consent. And if Quatrone knew that on April 28 (or on May 12), he could readily have inferred that the same was true when he arrested defendant again on May 27. Thus the May 27 arrest lacked probable cause.

In so holding, we do not adopt any universal rule applicable to encounters between police officers and people they believe to be trespassers in public housing projects. The question of when nonresidents of public housing may be treated as trespassers is complicated (see generally Elena Goldstein, Kept Out: Responding to Public Housing No-Trespass Policies, 38 Harv CR-CL L Rev 215 [2003]). The rule relied on by County Court, that one who has been invited by a tenant cannot be a trespasser, may be generally correct, but it is not immutable. A lease provision or regulation might permit management, at least in some circumstances, to override a tenant’s wishes.

Here, there is no evidence that any relevant lease term or regulatory provision existed; but we do not hold that even where that is true, a trespassing arrest of someone who claims to be a tenant’s guest necessarily lacks probable cause. An arresting officer should not generally be required to consult the lease or regulations before acting. An officer need not “conduct a mini-trial” before making an arrest (Brodnicki v City of Omaha, 75 F3d 1261, 1264 [8th Cir 1996]). In many situations an officer may be justified in accepting without independent verification a property manager’s assertion that management is entitled to decide who may enter the property. Under the circumstances of this case, however, where both the facts showing defendant not to be a trespasser and their legal significance had been pointed out to Quatrone a month earlier, he was not so justified.

Accordingly, the order of County Court, insofar as appealed from, should be reversed and the information dismissed.