PEOPLE v. GATEAU (2021)

ORDERED that the judgment of conviction is reversed, on the law, and the accusatory instrument is dismissed.

Following a jury trial, defendant was convicted of criminal trespass in the second degree (Penal Law § 140.15 [1]), and sentence was imposed.

Even assuming that the People established that the premises allegedly trespassed upon was a “dwelling” (see Penal Law § 140.00 [3]), as is required in a prosecution for violating Penal Law § 140.15 (1), viewing the evidence at trial in a light most favorable to the People (see People v Contes, 60 NY2d 620 [1983]), we find that the evidence was insufficient to establish that defendant “enter[ed] or remain[ed] unlawfully in [the] dwelling,” another necessary element of the offense (Penal Law § 140.15 [1]). “A person ‘enters or remains unlawfully’ in or upon premises when he is not licensed or privileged to do so” (Penal Law § 140.00 [5]). However, the evidence failed to establish, beyond a reasonable doubt, that defendant lacked a license or privilege to enter or remain in the dwelling (see People v Brown, 25 NY2d 374, 377 [1969]; Matter of Quanel M., 8 AD3d 386, 386-387 [2004]; Matter of Daniel B., 2 AD3d 440, 441 [2003]; Matter of Paul N., 244 AD2d 489 [1997]).

In view of the foregoing, we pass upon no other issue.

Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed.

ALIOTTA, P.J., ELLIOT and GOLIA, JJ., concur.