PEOPLE v. RAZZOLI (2021)

Judgment of conviction (Tara A. Collins, J.), rendered April 19, 2019, modified, on the law, to the extent of vacating defendant's conviction for 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 a 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 October 17, 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the surrounding circumstances, including the conspicuously posted signs, his prior possession of a Market ID, before it was revoked, and his prior purchases of Day Passes.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]).

We reject defendant's contention that he was deprived of a fair trial based upon the Criminal Court's refusal to permit one Peter Alphas, a former co-operator and Board Member of the Market, to testify by Skype. Defendant neither demonstrated necessity for this extraordinary procedure (see People v Wrotten, 14 NY3d 33, 40 [2009], cert denied 560 US 959 [2010]; People v Giurdanella, 144 AD3d 479 [2016], lv denied 29 NY3d 948 [2017]), nor that Alphas possessed any relevant information about the underlying incident. To the extent that Alphas possessed any information not properly deemed collateral, the People and defendant agreed to stipulate to those facts.

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.

Per Curiam.

All concur.