People v. Razzoli (Kevin)

71 Misc. 3d 133(A), 2021 NY Slip Op 50332(U)

• Court: Appellate Terms of the Supreme Court of New York
• Decided: April 16, 2021
• Docket: 570267/19
• Status: Unpublished

Opinion

People v Razzoli (2021 NY Slip Op 50332(U)) [*1]

People v Razzoli (Kevin)

2021 NY Slip Op 50332(U) [71 Misc 3d 133(A)]

Decided on April 16, 2021

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 16, 2021

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: McShan, J.P., Brigantti, Hagler, JJ.
570267/19

The People of the State of New York, Respondent,

against

Kevin Razzoli, Defendant-Appellant.

Defendant appeals from a judgment of the Criminal Court of the City of New York, Bronx County (Frances Y. Wang, J.), rendered October 25, 2018, after a nonjury trial, convicting him of criminal trespass in the third degree and trespass, and imposing sentence.

Per Curiam.

Judgment of conviction (Frances Y. Wang, J.), rendered October 25, 2018, modified, on the law, to the extent of vacating defendant's conviction of trespass and dismissing that count of the accusatory instrument, and otherwise affirmed.

The verdict convicting defendant of criminal trespass in the third degree (see Penal Law § 140.10) was supported by legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348 [2007]). There is no basis to disturb the court's credibility determinations. The evidence at trial established that the Hunts Point Terminal Market was "fenced or otherwise enclosed" (Penal Law § 140.10[a]) in manner designed to exclude those who do not have a valid Market ID or Day/Visitor's Pass permitting entry, and was not a place "open to the public" pursuant to Penal Law § 140.00 (see People v Licata, 28 NY2d 113, 115 n 2 [1971]). Defendant's presence inside the Market on June 14, 2016, without the requisite Market ID or visitor's pass, established that he "enter[ed] or remain[ed] unlawfully" in the premises (see William C. Donnino, Practice Commentaries, McKinney's Cons Laws of NY, Book 39, Penal Law § 140.00 [2010 ed.], at 13). Defendant's knowledge that he entered or remained unlawfully is properly inferred from the surrounding circumstances, including the conspicuously posted signs, his prior possession of a Market ID, before it was revoked, and his prior purchases of Day Passes.

Inasmuch as the Market was not open to the public, we need not reach defendant's arguments concerning the validity of a prior directive banning him from the Market (see People v Leonard, 62 NY2d 404, 408 [1984]).

Defendant's conviction of third-degree criminal trespass requires dismissal of the lesser included charge of trespass (see CPL 300.40[3][b]). We modify accordingly.

All concur.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Clerk of the Court
Decision Date: April 16, 2021