5 N.Y.3d 725 (2005)
To be convicted of third-degree criminal trespass under Penal Law § 140.10(a) for entering a building, the prosecution must prove the building was fenced or otherwise enclosed in a manner designed to exclude intruders.
Summary
Defendant Jerry Moore was charged with third-degree criminal trespass for entering a building on the SUNY Buffalo campus, violating a persona non grata letter. The New York Court of Appeals affirmed the dismissal of the charge, holding that the information was jurisdictionally defective. The Court reasoned that to establish third-degree criminal trespass under Penal Law § 140.10(a) for entering a building, the prosecution must allege and prove that the building was fenced or otherwise enclosed in a manner designed to exclude intruders. The information lacked such allegations, rendering it facially insufficient.
Facts
Jerry Moore was issued a “persona non grata” letter in 1999 and again in 2000, barring him from the SUNY Buffalo campus. On September 4, 2002, Moore entered a public building on the SUNY Buffalo campus. A verbal exchange occurred between Moore and a university employee.
Procedural History
The City Court granted Moore’s motion to dismiss the information, finding it jurisdictionally defective for failing to set forth every element of criminal trespass in the third degree. The County Court affirmed the City Court’s decision. The Court of Appeals granted leave to appeal.
Issue(s)
Whether an information charging a defendant with third-degree criminal trespass for entering a building is facially sufficient when it fails to allege that the building was fenced or otherwise enclosed in a manner designed to exclude intruders, as required by Penal Law § 140.10(a).
Holding
No, because the information failed to allege a necessary element of the crime, namely that the building entered was fenced or otherwise enclosed in a manner designed to exclude intruders.
Court’s Reasoning
The Court focused on the plain language of Penal Law § 140.10(a), which states that a person is guilty of criminal trespass in the third degree when they knowingly enter or remain unlawfully in a building or upon real property “which is fenced or otherwise enclosed in a manner designed to exclude intruders.” The Court emphasized that the 1987 amendment to the statute made this requirement explicit. Before the amendment, the statute had been interpreted as not requiring a building to be fenced or enclosed. The Court reasoned that if knowingly entering any building was sufficient, then the additional elements for trespass in specific buildings (schools, public housing) would be unnecessary, and the violation of trespass would be identical to criminal trespass in the third degree.
The Court cited People v. Alejandro, 70 N.Y.2d 133, 136 (1987), stating that “an information which fails to contain nonhearsay allegations establishing `if true, every element of the offense charged and the defendant’s commission thereof’ . . . is fatally defective.” Because the information and supporting deposition failed to allege that the campus building was fenced or enclosed, a required element of the crime, it was insufficient to establish criminal trespass in the third degree.
The Court stated, “The plain language of the statute as amended, however, clearly requires that both buildings and real property be fenced or otherwise enclosed in order to increase the level of culpability from trespass (see Penal Law § 140.05) to criminal trespass in the third degree.”