Lobby of Public Housing Unit Is Not “Open to the Public” Within the Meaning of the Law of Trespass

The Court of Appeals determined the misdemeanor information charging defendant with criminal trespass second degree was sufficient. The defendant was in the lobby of a public housing unit where a “no trespassing” sign was posted. When asked, the defendant said he did not reside in the building and could not identify any resident who had invited him. The court explained the elements of all three degrees of trespass and found that the lobby of a public housing unit is not “open to the public” within the meaning of the law of trespass:

Contrary to defendant’s argument, the word “public” in the phrase “public housing” refers to ownership, not access. It is not the case that all property owned by the government is “open to the public.” Certain areas of publicly-owned buildings may be restricted from public use by a locked door or a front desk, much like the common areas of privately-owned buildings … . The presence of a “No Trespassing” sign may also indicate that the common area of a publicly-owned building is not open to the public. Accordingly, we agree with the Appellate Term that it is possible for a person to enter or remain in a publicly-owned dwelling without license or privilege to do so. People v Barnes, 2015 NY Slip Op 07577, CtApp 10-20-15