From: John Bagley Jr. Date: September 13, 2011 Re: Cabrera & Davis Case Question Presented Whether the facts in the Cabrera & Davis case constitute criminal trespass in the third degree on the basis that their student protest violated a personally communicated, lawful order not to remain in a public college building. Brief Answer In Davis case, probably not. A lawful order not to remain is only violated if that order was personally communicated by an authorized person. Davis was sleeping in a separate room when the Dean gave the order not to remain and the order was never personally communicated to him by an authorized person. In this instance the court would probably find for Davis. However in Cabreras case, probably yes. The order was personally communicated to Cabrera by the Dean and it is likely that the court would find that she defied that order depending on its interpretation of the students license to be in the building. Facts Our clients, Alex Cabrera and Gary Davis are students at Queensbridge College. In response to administrative decisions that have limited access to classes necessary for graduation and will keep many students from being able to graduate in the upcoming semester as well as budget cuts that threaten termination of several student services such as academic support and counseling services, Cabrera and Davis along with about 40 other students staged a sit in in the halls of Highgate Hall the schools administrative building. This protest started sometime around 4:30 pm. At 6:00 security guards told the students that it was time to close the building, however the students informed the guards that they were not leaving. Provost Blakey was called to handle the situation, and after meeting with Cabrera the two agreed that the students would be allowed to spend the night there, on the condition that the students not damage the facilities. This decision was verified later that night by the college President, Provost, Dean of Students, and Director of Security who are responsible for campus security and student discipline. At this time the officials decided 1) the protest should not be allowed to continue any longer than one night and 2) Dean Sykes would communicate this fact to them the following morning. The gates of Highgate Hall which are normally locked at 9:00 pm remained unlocked overnight during the occupation. That evening into the night most of the students occupied the first floor reception area and hallway adjacent to the Provosts office. Davis however laid down to rest in a lounge at the far end of the first floor corridor at about 3:30 am. At 8:30 am the following morning only about 12 of the students were left in the building. After posting notices outside of Highgate, Dean Sykes entered the hall and delivered the order that any person who enter[ed] or remain[ed] in Highgate Hall, without specific permission from the President or Provost of the College, [would] be subject to prosecution. At this time, Davis was still sleeping in a room at the far end of the hall. The remaining students decided to stay in the building. According to Davis and Cabrera, some staff chose not to enter the building, which opened sometime before 8:00am, while the remaining students occupied it, but classes were held as usual. At about 10:15 am, the remaining occupiers decided that their point had been successfully made and that it was time to leave the building. Before leaving , Cabrera went back to wake up Davis in the lounge. Once Davis was awake the two exited the building, upon which time they were met by police who told them theywere under arrest for trespassing. Discussion I. Are the facts in Cabrera and Davis sufficient to constitute Trespassing in the third degree. A person commits trespass in the third degree when they knowingly enter or remain unlawfully in a building or real property which is fenced or otherwise enclosed in a manner designed to exclude intruders. N.Y.P.L . Sec. 140.10, 140.10 (a). A person enters or remains unlawfully when they do not have license or privilege to be in the building or real property. N.Y.P.L. 140.00(5); People v. Brown, 756. Where the building is open to the public at the time the person is presumed to be licensed or privileged unless a lawful order not to remain or enter has been personally communicated to them by someone authorized to do so and they defied that order. N.Y.P.L. 140.00(5); People v. Brown, People v. Licata, People v. Munroe, People v. Reape. Because the remaining unlawfully element is the most problematic in this case, the memo will discuss it after a discussion of the issues not in dispute. Additionally, because the circumstances in the facts are substantially different for Cabrera and Davis, the memo will make explicit distinction between the analyses for each defendant. A. The students knowingly entered and remained in Highgate Hall - a building in the normal sense of the term. A person cannot be convicted of Trespass in the third degree unless they are found to have first (1) entered or remained knowingly (2) in a building or real property enclosed or fenced to exclude intruders. NYPL In most trespass cases these elements are easily satisfied. A person acts knowingly when he or she is aware of the nature of his or her conduct. NYPL 15.05(2). Cabrera and Davis of their own volition entered and remained in Highgate with awareness that they were doing so. A building here is to be understood in the normal use of the word. Therefore the fact that Cabrera and Davis knowingly entered and remained in a building, in this case Highgate Hall,