STATE OF NEW YORK COUNTY COURT
COUNTY OF SULLIVAN
__________________________________________

PEOPLE OF THE STATE OF NEW YORK,

                                                Respondent,
 

-vs- ______________________________________

STATEMENT PURSUANT TO C.P.L.R. 5531

DANIEL EGGINK, ABIGAIL STORM,
CYNTHIS EGGINK, JOSEPH ANDERSON,
JAY DEBBERMAN AND JOY DEBBERMAN,

                                                Defendants - Appellants.
___________________________________________

1.    Index number in the court below - not assigned.

2.    Full names of the original parties are as set forth above.

3.    The action was commenced in the Town of Bethel Justice Court.

4.    The action was commenced by arrest of the Defendants on July 30, 1997, July 31, 1997 and
       August 5, 1997 and the filing of accusatory instruments on those dates.

5.    The action was a criminal action alleging that the Defendants had committed the violation of
       Trespass (P.L. § 140.05).

6.    This appeal is from a judgment of conviction and the sentences imposed thereon which was
       rendered on October 27, 1997.

7.    This appeal is being prosecuted on the original record pursuant to Uniform Rules for Trial
       Courts § 300.33 and employing the appendix method.

INDEX

1. Statement of the Questions Presented

2. Statement of the Nature of the Case

3. Failure to Admit Restraining Orders into Evidence was Reversible Error

4. The People Failed to Prove That Defendants Had Knowingly Violated the Trespassing Law.

5. Accusatory Instruments Were Jurisdictionally Defective

6.  The Trial Court Improperly Failed to Permit Cross - Examination of the People's Witness

7.  Conclusion

I.    Was it error for the trial court to refuse to admit into evidence duly certified copies of 2
       temporary restraining orders issued by  Kings County Surrogate's Court as offered by the
       Defendants - Appellants to disprove the complainant's title to the subject premises?
       The Court below denied their admissibility.

II.   Did the prosecution prove that Defendants - Appellants "knowingly" trespassed?
       The Court below held that prosecution did.

III. Were the accusatory instruments jurisdictionally defective for failure to set forth in
       non - hearsay fashion the elements of ownership and authority?  The Court below did not
       address this.

IV. Did the trial court improperly fail to allow cross-examination of the People's witness?
      The Court below did not allow certain questioning.

       This appeal arises out of the conviction of the Defendants Daniel Eggink, Abigail Storm,
Cynthia Eggink, Joseph Anderson, Jay Debberman and Joy Debberman for Trespass in
violation of Section 140.05 of the Penal Law

      The case was tried on September 29, 1997 in the Town of Bethel Justice Court. On
October 6, 1997, Hon. Albert Fimognari, Town Justice of the Town of Bethel rendered a
decision and order finding the defendants guilty. Sentencing of the defendants, on October
27,1997, resulted in the imposition of fines in the sum of $245, together with a $50
surcharge, for each defendant.

      The land upon which the defendants were alleged to have trespassed was the site of the 1969
Woodstock concert. Each year from 1969 until the summer of 1997 people from all over the world
would come to the site on the anniversary of the 1969 Woodstock concert to celebrate said event.
More importantly, defendants did not believe that the complainant was actually the true lawful
owner of the property in question. Defendants had good reason for their belief.

        Defendants were aware of the existence of the proceeding in Kings County Surrogate's Court in which a Mrs. Helen Necketopolous was claiming title to said property, alleging that the deed
signed by her husband, Louis Necketopolous, to June Gelish was actually a forgery. As a result of
the action in Kings County Surrogate Court, restraining orders dated 3/6/91 and 3/4/94 (A6-A10) were issued preventing any devise or transfer of the subject property.
        Defendants attempted to introduce into evidence a certified copy of the said restraining orders, which were in effect at the time of the deed from June Gelish to Gelish Realty, L.L.C. (A-15), but the Court would not allow said restraining orders into evidence. Gelish Realty, L.L.C.
was purportedly the title owner of the property in question at the time of defendants' arrest.

        Had the Court allowed said restraining orders into evidence, defendants would have proved
that the deed which the people entered into evidence to prove ownership was actually void, as
said deed was transferred in violation of the restraining order.

        It is further alleged that the Court failed to allow defendants' counsel to question prosecution
witness Darrell Supack regarding ownership, and the restraining orders referred to above

        Thus, defendants herein appeal from the trespass conviction on the various grounds set forth
herein.

        It was uncontested that the property upon which the defendants allegedly trespassed
was unimproved vacant land which was open to the public and was not posted. Penal Law Section
140.00(5) provides, "A person who enters or remains upon unimproved and apparently unused land, which is neither fenced nor otherwise enclosed in a manner designed to exclude intruders, does so with license and privilege unless notice against trespass is personally communicated to him by the owner of such land or other authorized person, or unless notice is given by posting in a conspicuous manner".

        Thus, part of the defense centered around the elements of ownership of the property, and
whether those who allegedly gave notice had authority to speak for the true owner, See, People v.
Daily, 68 Misc. 2d, 692, 330 N.Y.S.2d 899 (App. Term 1972).

        The people introduced into  evidence a deed to the premises. The title owner to the premises
on said deed was Gelish Realty, L.L.C. The deed was dated July 24, 1996 and was transferred
to Gelish Realty, L.L.C. by June Gelish. (A-15).

        Defendants attempted to place into evidence a duly certified copy of a temporary restraining
order dated March 6, 1991 (A-10) and another one dated March 4, 1994 (A-6) from the Kings
County Surrogate Court, Hon. Bernard M. Bloom, which prohibited said June Gelish from
transferring , assigning or otherwise disposing of the premises upon which the defendants allegedly
trespassed.

        Clearly, the trial court erred in failing to admit into evidence these court orders, as the trial
court could have and should have taken judicial notice of the order of another court, See, Matter of
Roy T, 126 Misc. 2d 172, 481 N.Y.S.2.d 257, 259 (1984).

        A deed transferred in violation of a restraining order is null and void. If said deed was in fact
null and void People's case fails as to element of ownership.

        By failure to admit these court orders, the trial court committed reversible error, and the case
should be remanded for a new trial.

        The New York State Court of Appeals, in the case of People v. Basch and Bruno, 36
NY2d 154, 365 N.Y.S.2d 836, 325 N.E.2d 156 (1975), explained that in prosecuting one for
trespass in violation of section 140.05, "it must be proved that such person "knowingly" entered the
premises without license or privilege and, therefore, a person...who honestly believes that he is
licensed or privileged to enter, is not guilty of any degree of criminal trespass".

        As discussed above, defendants testified that they were aware of the existence of the
restraining orders and were of the opinion that Gelish Realty, L.L.C. was not the lawful owner of the premises. As such there was no evidence to support a conclusion that defendants knowingly
trespassed.

        Furthermore, defendants believe that a prescriptive easement exists which belongs to the
public by virtue of the annual anniversary concerts' gatherings held on the site each summer since
1969. Defendants testified that they were members of the Woodstock Nation Foundation which has as one of its purposes the mission of protecting said easement. Such a belief, even if mistaken,
negates the element of "knowing unlawful remaining" on the subject premises. People v. Ranieri,
144 A.D.2d 1006, 1007-1008, 534 N.Y.S.2d 286 (A.D. 4 Dept. 1982); People v. Basch an
Bruno, supra.

        As such the people failed to prove the element of "knowingly" remaining upon the premises
inasmuch as the defendants clearly proved that they believed they had a license and privilege to
remain upon the site of Woodstock Festival.

         By virtue of this failure to prove one of the elements of the alleged violation the conviction
of the defendants should be vacated.

        In People v. Alejandro, 70 NY2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71 (1987) the Court
of Appeals held that failure of an accusatory instrument to set forth each and every element of an
offense in non - hearsay form is a jurisdictional defect requiring dismissal.

        As explained herein, ownership of the subject premises is an element of the offense.
People v. Dailey, 69 Misc.2d 691, 330 N.Y.S.2d 899 (App. Term 1972). A look at the
accusatory instruments herein reveals that the complainant is "Alan Gerry, Granite Assoc."
although the documents are signed actually by a "William Ruth".

        Nowhere in the factual portion of the accusatory instrument does it set forth the name of the
owner of the premises in question. Nor does the accusatory instrument set forth the relationship
between complainant "Alan Gerry, Granite Assoc." and "William Ruth", who signed said
document.

        Nowhere in the accusatory instrument does it allege that Gelish Realty, L.L.C. is the
owner of the premises, which is what was eventually proved at trial. Nor does the accusatory
instrument explain what, if any, authority "Alan Gerry, Granite Assoc." has in relation to Gelish
Realty, L.L.C. or what authority "William Ruth" has in relation to either "Granite Assoc." or
Gelish Realty, L.L.C.

        Thus, the accusatory instruments fail to set forth in non- hearsay terms the elements of
ownership and authority.

        In light of this failure, the convictions of the defendants should be vacated and the accusatory
instruments should be dismissed.

        Counsel for the defendants attempted to cross - examine Darrell Supack, who is an officer
of both Granite Associates and Gelish Realty, L.L.C. regarding ownership of the premises.

        Counsel for the defendants wanted to cross - examine Mr. Supack regarding the transfer of
title to Gelish Realty, L.L.C. at a time when such transfer of title was prohibited by the
temporary restraining orders from the Kings County Surrogate's Court.

        Counsel for the defendants also was questioning Mr. Supack as to who were the other officers of Gelish Realty, L.L.C. This line of questioning was relevant as to both ownership and as to authority to ask the defendants to leave the premises.

        The trial court in its Amended Return, asserts, "Questioning continued on ownership until
it got to the point where questions were irrelevant to the officers of the Corporation of June Gelish L.L.C. The Court felt that the Defense Attorney was asking questions that witnesses could not answer because they had no knowledge of all officers of June Gelish L.L.C.".

        When the trial court refers to "June Gelish L.L.C." the undersigned assumes it refers to
"Gelish Realty, L.L.C." as no entity known as June Gelish L.L.C. is involved in this case.

        Nonetheless, defense counsel was prevented from asking Mr. Supack about  the temporary restraining orders and the names of the other officers of Gelish Realty, L.L.C. As he was on cross-examination, he should have been granted sufficient leeway to make his point.

       The United States Supreme Court has said that the "right of confrontation and cross -
examination is an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal". Pointer v. Texas, 390 U.S. 400, 405, 85 S.Ct. 1065, 1068, 13 L. Ed.2d 923 )1965; Lee v. Illinois, 476 U.S. 53, 540, 106 S. Ct. 2056, 2062, 90 L.Ed.2d 514. The ability of a criminal defendant to cross - examine adverse witnesses is "primarily a functional right that promotes reliablity in criminal trials". Id.

        In view of the confusing array of entities in this case involving a complaint - information
listing the complainant as "Alan Gerry, Granite Assoc.", signature by William Ruth and title allegedly
by Gelish Realty, L.L.C. questioning as to the names of the officers of Gelish Realty,
L.L.C. and their respective authority is clearly of relevance herein. As such, failure to allow
questioning as to same is reversible error.

        Based upon the trial court's improper restriction of questioning by defense counsel, the defendants were denied their constitutional right to a fair trial. As such, the case should be remanded back to the lower court for a new trial.

Based  upon the forgoing, the conviction and sentence of the Defendants - Appellants
should be vacated. The case should be remanded for a new trial or dismissed entirely, based upon which of the above arguments is persuasive to the Court.