People v. Willis

60 Misc.3d 1231 (A)

110 N.Y.S.3d 509 (Table)

The PEOPLE of the State of New York, Plaintiff,

v.Jermaine WILLIS, Defendant.

16-2976

City Court, New York, Mount Vernon.

Decided on September 10, 2018

Westchester County District Attorney, Mount Vernon Branch, The Law offices of Audrey Thomas, PLLC, Attorney for Defendant, 245-07 Francis Lewis Blvd. Suite 2, Rosedale, New York 11422

Adrian N. Armstrong, J.

The defendant in this case is charged with one count of Criminal Trespass in the Second Degree (P.L. § 140.15); one count of Criminal Possession of a Weapon in the Fourth Degree (P.L. § 265.01[01] ); one count of Attempted Petit Larceny (P.L. § 110/155.25); one count of Harassment in the Second Degree (P.L. § 240.26[01] ); and one count of Unlawful Possession of Marihuana (P.L. 221.05).

A bench trial in this action began on March 23, 2018, and after many adjournments, the trial was completed on August 17, 2018. The People called two witnesses: Mount Vernon Police Detective Anthony Burnett and complainant, Lawrence Gomez, who both testified credibly. Prior to presenting evidence the People withdrew the Unlawful Possession of Marihuana charge. Defendant called his former co-defendant, Sheldon Shirley to testify on his behalf.

Lawrence Gomez testified that on October 15, 2016 he was at his home at 458 South 2nd Avenue in the city of Mount Vernon, County of Westchester when he heard his door bell ringing at approximately 10:30 a.m. He testified that at that time he accepted a package from a Federal Express delivery person. Although the package was in the name of Akeem Gordon, Mr. Gomez testified that he accepted the package because he believed it was for his girlfriend's son, Nic Gordon. Shortly after receiving the package his doorbell rang again, and as he responded to the door he observed a black male standing in his foyer which is in an enclosed porch. As he opened his doors leading out to the foyer area, he testified that the black male started to walk towards the inside of his home when he told him to stop. The same male told him that Federal Express mistakenly delivered a package to his house that belonged to him, and he was there to pick up the package. Mr. Gomez asked for identification and the defendant told him he did not have identification, but showed him the tracking information of the package on his phone. Mr. Gomez told the defendant that he still needed to see his identification before he could give him the package. Mr. Gomez then testified that when he once again refused to turn over the package to the defendant, the defendant then tried to push by him to retrieve the package which was located approximately six feet away from him inside of his home. Mr. Gomez further testified that when he prevented the defendant from pushing past him, he was able to push the defendant out of the foyer and he immediately locked the front door. Mr. Gomez further testified that he did not give the defendant permission to enter the foyer area of his home.

Mr. Gomez testified that after ejecting the defendant from his home he first called Federal Express to come back to his home to retrieve the package that was just delivered. He then placed a call to the Mount Vernon Police Department, whereby he informed them that a guy walked into his house, asking for a package. He told them that when he asked the gentleman for identification, the individual attempted to take the package from him and enter his home. He described the black make as an individual with a thin build, beige pants and dread locks. Shortly thereafter, he testified that he exited his home and observed the defendant being held by members of the Mount Vernon Police Department. Mr. Gomez then identified the defendant as the person that had attempted to enter the interior of his home to retrieve the Federal Express package.

Detective Burnett of the Mount Vernon Police Department testified that after receiving a 911 report of this incident, he proceeded to the subject location and observed the defendant, who fit the description of the person that attempted to gain access to the complainant's home, standing in the street near a parked vehicle. When he approached the defendant and identified himself as a police officer, Detective Burnett testified that he observed the defendant toss an item in the grassy area of the sidewalk, near where he was standing. That item, a knife, was recovered and the defendant, after being identified by the victim, was placed under arrest.

Sheldon Shirley testified that on the date in question he received an early morning call from the defendant asking him to give him a ride to Mt. Vernon. Mr. Shirley testified that he left his home in Brooklyn and picked up the defendant in he Bronx. Mr. Shirley stated that he wasn't familiar with the Mt. Vernon address so he allowed the defendant to drive his vehicle to Mt. Vernon. He further testified that they arrived in Mt. Vernon in front of the complainant's home shortly after 9:00 a.m. Mr. Shirley stated that the defendant left the vehicle and he observed the defendant ring the door bell, and after a short time was let into the home by a white male. He then testified that the defendant came out of the home shortly thereafter, entered the vehicle and drove a short distance away from the home before stopping the vehicle and getting out to answer a phone call. Mr. Shirley then testified that while sitting in his vehicle he observed a black guy in plain clothes, with no badge displayed, pointing a gun at the defendant who was standing outside the vehicle. On cross examination, Mr. Shirley testified that he had no idea why the defendant wanted a ride to this residence in Mt. Vernon and had no conversation with the defendant regarding the Federal Express package.

The video surveillance of the front of the defendant's home was introduced into evidence and shows the Federal Express employee delivering the package at 10:16 a.m. The video then shows that at 10:25 a.m. the defendant pulls up in a white vehicle, gets out and rings the victim's front doorbell. The defendant is seen standing outside of the home while speaking on a cell phone for approximately two minutes before opening the door and entering the screened-in porch of the victim's home at 10:28 a.m. The defendant is then seen leaving the home at 10:31 a.m. and driving away from the residence. What transpired between the defendant and Mr. Gomez between 10:28 and 10:31 a.m. while inside the residence was not captured by the video.

A person is guilty of Criminal Trespass in the Second Degree when "he or she knowingly enters or remains unlawfully in a dwelling." PL § 140.15(1). Defendant's contention that the evidence failed to establish that he entered the dwelling unlawfully is incorrect. The owner's testimony clearly established that defendant entered the foyer area of his screened-in porch without his permission, and when told to leave after a brief conversation, the defendant allegedly tried to enter the home to retrieve the aforementioned package. Mr. Gomez then testified that he had to push the defendant out of his home.

As such, based upon the credible evidence presented, this Court finds that the...