Presiding is Judge Albert Fimognari
Lawyer for the defendants (Abigail Storm, Daniel Eggink, Cynthis Jewel Eggink, Joe Anderson, Jay and Joy Debberman) is Richard Newberg.
Lawyer representing the plaintiffs (Alan Gerry and Gelish Realty) is Joey Drillings. Assistant District Attorney, Sullivan County New York.
Newberg- I have no other witnesses your honor, but before I rest I would just make sure the record's clear, I would like to offer into evidence, certified copies of the restraining... of the temporary restraining notices dated March 1, 1991, filed in Sullivan County clerk's office, and the order to show cause temporary restraining notice, dated March 4th 1994, as well as a certified copy of the verified petition of the attorney of Helen Necketopolous as described in the forgery action which is filed in the Sullivan County clerk's office. I am doing that for the record because your honor has previously not, admitted these into evidence, and I just want that on the record, so I'm ordering for..
Judge- For the record, you can not.
Newberg- I can not?
Judge- I will not accept them.
Newberg- All right. Again, your honor, before I rest, please note my exception again for not being permitted to cross-examine Mr. Supak on the issue of ownership. The defense rests.
Judge- You questioned him on ownership, as far as, if I can recall correctly, he said that June Gelish, LLC owns the property. Is that correct? Is my recollection correct?
Newberg- That's my recollection, yes your honor.
Judge- All right. So, that was your question to him and that was his answer to you.
Newberg- That was one of my questions. There were a lot more, that your honor did not let....
Judge- You wanted to take it alot further. Okay, I remember.
Newberg- Your honor, I would like to make, have formal summations.
Judge Okay.
Newberg- Your honor, first let me say, and, of course, it's your honor's right not to allow certain evidence in and not to permit certain lines of questioning, and I feel somewhat handicapped because your honor, if I could. One of the main elements with regard to this charge, is who owns the property. And I would, if I could your honor, just like to state the following.. The charge of the violation of trespass which my clients were charged with... the people must establish, beyond a reasonable doubt, that the defendants entered or remained knowingly and unlawfully upon the premises... What that means your honor is that they must have intended to be unlawfully on the premises. That's why this statute exists. A section where, if somebody... you don't want somebody in your house or on your property, and you tell them to leave, they're supposed to leave. But if somebody comes on that property because they believe they are a tenant, not that they are, but that they believe that they're a tenant, or that they believe that they have a right to be there, whether they're mistaken or whether it's accidental, they cannot be guilty of this offense, because they have no criminal intent. They believe that they are lawfully there. And that's not just my words, your honor. Let me just take a minute. I'd like to submit some law to you..... In the case that I had shown your honor earlier, I believe you still have a copy.. Judge Cook's opinion, board of appeals opinion, in people vs. Bash, the Judge goes on to say on page 159 that furthermore in prosecuting one for trespassing.....
Judge Are you starting at a paragraph or?
Newberg- Yes.. 159 your honor, I'm two, four, sixth sentence down from the top.
Judge- Okay, I have it.
Newberg- Furthermore, in prosecuting one for trespass, in violation of section 140.05, it must be proved that such person knowingly entered the premise without license and privilege, and therefore a person who enters the premises accidentally, or who honestly believes that he is licensed or privileged to enter, is not guilty of any degree of criminal trespass. Now, that's all... Now with all that's happened here this afternoon, it's abundantly clear and it's undisputed testimony, undisputed evidence, that the defendants were there because they felt they had a right to be there. They were not there for any unlawful purpose. Somebody can't make a mistake, assume for just argument's sake, that we knew who the owner of the property was, and my clients feel that they have a property right there, or believe that they have a property right there, or a license to be there or they've been invited to be there, they can't be guilty of this crime. This offense is to charge someone who is intentionally, knowingly, wrongfully, on someone else's property. Not somebody who, by their mistake, come onto the property, or in a belief, in a mistaken belief, that he has a right to be there. And the testimony... the evidence before this court, it's uncontroverted, that my clients were not there to politically protest on somebody else's property, they weren't blocking any doorways, all right? They weren't there because they're there taking over the property and excluding everybody else. They were there because they believe they have a constitutional right to be there to express their freedom of speech, and because they believe they have a property right to be there because they've been going there for this... This is what the properties been used for since it's been a farm in 1969. That's it. That, in and of itself, clearly, as Judge Cook so eloquently stated, that in an of itself, is a defense to this charge. Forget about everything else. That's enough. They can't be found guilty of this if they enter there accidentally or with an honest belief that they had a license or a privilege to be there. Now, besides what they believe your honor, they were invited to be on this property, they're part of the public. There is no question in the testimony of the witnesses, of the people's, even from the people's witnesses, that this property, although claimed to be private land, it's private land that's opened to the public. Now, what does open to the public mean? Open to the public means, doesn't mean, anybody can come on here with no rules or regulations, or whatever. If it's open, if it's open to the, ..It's got a monument on it, that monument wasn't put there, it was put there because people wanted it to be there, because the owners, the then owners were inviting people to come and visit this property. The property is, there's invitations by the county of Sullivan, to go see the property, there is no question, and it is uncontroverted that anybody who wants to go to this property, any time of the year, can go on it and view the monument, and have a vigil on the property, and do whatever they wanna do on this property, as long as they are acting lawfully and they're not destroying anything, can do it. Because that's being done. It's being done right now. Every time I drive out there there are people, people who go on the property, and they can do it, and they're invited to go there. They're invited because nobody stops them.. Whoever's claimed to be the owner throughout all those years has never stopped them. All right? You can go there. Nobody's put up a fence. Nobody's blocked off the entrance to it where the monument is and up on the roads. This is clearly private land that is open to the public. Now, what does that mean?... Your honor, I'm gonna hand you, if you will, if you'll let me, a case I hope you'll consider. It's the case of people vs. Rewald. I'd just like to read from various portions of the case, and this time I'll tell your honor where I'm reading from... Turn, your honor, to page 457. The second paragraph, the first full paragraph but it's two, four, the sixth line down.
Judge- 457?
Newberg- 457.
Judge- It's talking about ..."in those cases revealing..."? Is that where you're gonna start?, Because, I can't see a paragraph here except all the way down.. yes, all the way down here?
Newberg- I'm sorry your honor, you got a bad copy, sorry. This court, that's a new paragraph, I'll get you a better copy.
Judge- That's okay, I'll just make a note myself.
Newberg- This is a case, your honor, involving a charge, the same charge, the charge of trespass 140.05, on a property that was, that's private property, but it's a company town. It's open to the public. The public is allowed to come in with certain restrictions. Here's what the court concluded, that "mere title or possessory control of premises cannot be determined of the issues met here. In those cases revealing a public or quasi-public use of premises, a determination of the right to impose the penal sanction against trespass, must depend upon the degree of public use which the owner permits or invites upon his premises. Public or partial public use of premises, whether under express or implied invitation, or permission, carries with it a license to enter, carries with it a license to enter, and, absent abuse of such privilege, carries with it the correlative license to lawfully remain. In cases such as this, the owner possesses the revocation of the right to remain by denial, or by requesting, or by order to leave, which will convert the status of the alleged offender from licensed to that of criminal trespasser, must rest upon and arise from either"....
Judge- Sorry to interrupt you...
Newberg- ..arise from either reasonable customs and practices, rules, regulations, and or statutory law, or under circumstances from which a reasonable owner or possessor, would anticipate clear and present danger to person, property, or the public peace. But, in no event, under the circumstances we have here, should revocation of the right to remain be predicated upon mere whim, caprice, or arbitrary choice. To permit arbitrary and capricious ejection from publicly used premises, would violate not only the fair impendment of the statutory privilege, but would clearly raise serious questions of fundamental constitutional rights.
Judge- Correct.
Newberg- Standing alone, this property open to the public, has a different standing then somebody, if somebody comes into somebody's home and they're asked to leave. These people claim that they own the property, and had no right, after they invited people to go there, to ask them to leave. There's no right of there's whatsoever that was being infringed upon. They were not put in any danger. The people that were there were peaceful. They, the people that were there, were just celebrating something that even the people who claim they own it, knew has been going on every year, since 1969. They were acting arbitrarily and capriciously, in telling these... Because it was their whim. "Okay, now that you're here, we don't want you here because you put a tent up. The people who were invited onto these premises, only knew what they read in the newspaper, and only knew what had transpired before. And in the newspaper Mr. Supak said, "we're just gonna have people there to see that everybody respects everybody. Ordinances are gonna be enforced, and, by ordinances, what does he mean? He's talking about a camping ordinance? Those, he says, those are gonna be enforced by the sheriff. And those are gonna be enforced by the police. My clients were invited there, whether expressly or impliedly, to be there and celebrate, were never shown any... there was nothing to tell them about the rules. Whether they had to abide by them or not, they were not given them. There's nothing in this notice, that's in evidence, when I asked Mr. Ruth, show me the rules. There aren't any rules in that. There's nothing in there that says you can't stay overnight. There's nothing in there that says that you can't have a tent. Sure, after my clients get arrested, they run and go put up signs. Because now they realize, hey, now we got to put some rules up for people. That's what happened. That's why these people are not guilty. That, in and of itself, because it's private land open to the public, is a whole different... it's looked at a whole lot differently then if somebody came into your house and your porch, knocked on your door, and said, "Let me in" and you say "Leave", and they don't go. Sure, you've got a right to arrest them. But not here. Not here. Because the public's invited to this land, and those rules don't apply. They don't apply in this case, and that, in and of itself, is another complete defense my clients have to this violation. Now, Your Honor, the part that I wished I could've gone into, but I didn't, I wasn't permitted. When you have... when people are charged with a trespass as a violation, the character of the property determines what the elements of the charge were. And where you have an unfenced, open field, the only way... the only way that there can be a charge that can be sustained of the offense of trespass is that the owner, or an authorized agent of the owner, gives actual notice. These are the phrases that are used in the case, actual notice to the people that they're trespassing. That's why ownership is so important. I submit to you, your honor, that with the... just with the limited evidence you have regarding ownership before you, a deed from June Gelish to Gelish Realty, LLC, with the same address, using the same address, showing no consideration, or, as your honor said, under five hundred dollars, practically no consideration. There's been no evidence of ownership in these people, other than their statement, "Yes I own it". Well, that's not enough. My clients are faced with a violation of trespass here, with a serious charge against them. It's incumbent upon the people to prove ownership. Just somebody saying, "I own it", is not proof of ownership. You, your honor owns a house, I own a house, we got a deed, it's got our names on it, we own it. For somebody to come in and say I'm Gelish Realty LLC, but I don't know why this address is here, and I don't know why it says zero consideration, and I don't know why June Gelish is listed as the President, and I don't know if we have a President. Is that credible evidence of ownership of property? Is that the way that you and I own property? Is that the way that anybody owns property? And, if they're not the owner, maybe they're in contract to buy it. Maybe they've got some deals going that they don't want people to know about. But, if they're not the owner, they can't give notice and they can't authorize anybody to give notice, and my clients have another defense. My clients are not guilty. So, there's three separate, distinct defenses. Each one on their own is enough for you to acquit this... to acquit my clients. Now, I just have a little more law for your honor. If you could just bear with me one minute while I pull that out.... "Even if mistaken", negated the element of knowingly, unlawful remaining. That's a fourth defense. Even if my clients are wrong, they entered this property, under the belief that they've testified, that they had a right or privilege to be there. Once they do that, once they're there, believing that they've been there, they can't knowingly, unlawfully remain, unless, as Ms. Storm said, Mrs. Necketopolous, the widow, showed up, then maybe. Because, that's who she believes is the owner of the property. Anybody else doesn't have a right to ask them to leave, as far as they are, as far as what they believe. And in this case, your honor, because we're talking about a criminal intent, they had to have intent to be there wrongfully. If they don't have that intent, if they believe they're there because they have a right to be there, even if they're wrong, completely wrong, in fact, but if they believe it, and they've got a basis for believing it, they can't be guilty of trespass. That's what trespass is all about. It's not, you don't have a right to be here, so you're guilty of trespass. If you believe you have a right to be there... If you're there under the mistaken impression that you've got a right to be there, you're not committing this violation. That's what these cases hold, your honor. So, I know your honor will... all four of these issues, each of which by themselves are complete defenses. I know your honor will take into consideration the law, because it's not, as I said in my opening, your honor, this isn't simple, this is complicated, because this case uniquely has every defense, every valid defense to the violation of trespass. Each one, in and of itself, standing alone, is enough to acquit them, the defendants. Thank you, Your Honor .
Drillings- Judge, to believe Mr. Newberg's argument is to disregard about ninety percent of the evidence that the court saw before it. First of all, their believing they have a right to be there, I guess, disregards this own court's decision against Ms. Storm. Stating that she doesn't have a right to be there. In fact, she was guilty of that point in 1993. But, what defense counsel's telling you there is to disregard the law... disregard the conclusion by the court. Disregard that the Supreme Court, up in the county court, decided that .....
Newberg- Now, that I'm not gonna let you do. Because that's not the decision of the court. That was, just so you'll know, that was the decision on the temporary restraining notice. The action is pending.
Drillings- There were certain issues in that, that were discussed by Ms. Storm, were discussed by Mr. Newberg, that were rejected by the court. I'll leave it at that, Judge. Basicly, a person's right to be on land can be revoked at any time as long as they're given notice. The three keys to this are, notice, authority, and owner.., the fact that they're not lawfully allowed to be on the property. Well, the people have shown that they're not lawfully allowed to be on the property because the owner doesn't want 'em on the property, and that was testified to by Mr. Supak, who represents the owners in this case. Ownership is shown by the certified deed, Judge. If there was any other documentation, to show otherwise, I believe the defense counsel would have shown it to the court. Judge, a certified deed, filed in the government center, which states that Gelish Realty has a right to the property, and that their ownership of the property is basically, there's no proof otherwise shown by defense counsel. The defendants received notice. Each of the defendants testified that they received within days or hours, received notice to leave. They were told to leave. They weren't arrested immediately, they were told to leave and they didn't leave. In fact, not only did they not leave, in the case of Mr. Debberman, told the guy, we're not leaving, we're not taking it down, we're staying here, we don't agree with your authority. Well, Judge, their not agreeing with the authority, doesn't mean that legally, under the law, their authority doesn't exist. Ms. Storm, Mr. Debberman, Ms. Debberman, Joseph Anderson, Daniel Eggink, and Cynthia Eggink aren't the law, Judge. The laws are written in the books. Just because they disagree with it doesn't mean that it's unconstitutional, doesn't mean that it's a law, or does mean that it's not the law. There was a lawful order, Judge. They didn't... I believe the evidence presented before the court is the letter, and the signs, and, in fact, the press release, stating that we don't want certain things done on the land, we're the owners of the land. As for the certified deed, we don't want these people on the land to camp. We don't want certain things to happen. That's their right to do so. It's their land. Unlike the cases Mr. Newberg showed you involving public places, Judge. Judge, this is privately owned land. It may be open to the public at certain points and times that this private owner allows it to be, but all of these cases are involving public land, and this is not per se, public land. This is a certified deed with a private owner. It's privately owned land, and can set the rules he wants. He can revoke their right to be there at any point, and the law allows him to do that. And he did so. And, in the case he gave them days notice. He gave them hours notice. I mean he gave them notice. So, the notice part of... the notice element of this is satisfying. Authority-wise Judge, they testified that they have the authority, as for the owner, to be here. They testified under sworn oath. Mr. Newberg made some statements... made some commentary to the court, but none of it was proven, not of it was proven that Mr. Supak or Mr. Ruth doesn't have authority. It was undeniable that they have authority. They work for Gelish Realty. They work for Granite Associates. And their authority was testified to and sworn to before your honor. As to whether they were trespassing, Judge, they were on the land, they admitted, Ms. Storm admitted that previously she'd been arrested for being on the land. Mr. Anderson testified that there were times when other people have been stopped from going on the land. Judge, there's not an open right to be there. There's not a sign that says, welcome to the public, everybody come on whenever you wanna come on. Judge, there's rules and regulations and they violated those rules and regulations. As for authority, again, Judge, the deed. Under the law a deed is presumptive evidence that the ownership has to be rebutted by defense counsel and it wasn't. The court has the certified deed before it, and the court has the presumptive evidence that they had the authority and that they had ownership. Mr. Newberg argued that there has to be an intent to be on the land unlawfully. Judge, in order to believe, that they believed they had a right to be there is for Ms. Storm, and the court and Ms. Storm, and everybody here to disregard the fact that they were told not to be there. They didn't want them there. Ms. Storm in fact had been arrested twice before, once convicted, and told, that I mean, it's obvious that these people didn't want all these people on their land. It's common knowledge that they didn't want all these people on their land. Presumptive easement, prescriptive easement, can't hold water when you've been arrested before and convicted before, because that's knowledge that they didn't want you there. Regardless, even if you're not convicted, if you're arrested, if these owners sign a complaint, that's telling you, they don't want you there. If they argue that the ownership isn't valid, that the... which is taking place in another court and has nothing to do with this, then they have got to prove to you that they have a better... a better right to the property, than the people we're claiming to be owners. But Judge, again, we go back to the certified document which shows that they have ownership of the property. They can do with it, under the law, they have the right to own the property, and do with it what they may. Because they have the right to revoke whoever's right to be on the property. Because these people don't agree with it doesn't make it, you know, doesn't say, okay that means there's no ownership, you know, somebody could say, you're not the judge. Does that make it mean that you're not the judge? It's somebody's opinion, however, under the law you are the judge, and under the law, Gelish Realty and Granite Associates own the property and they can revoke that right to be on the property. All the other stuff that we discussed about ownership, about how much they paid for it, about taxes, that Mr. Newberg argued in closing, is irrelevant. The people had case law under the uniform justice court act, under the judiciary law which states it's not, it's not up to the court to decide that. If the people prove it, that's one thing. If the people can't prove it that's another. However, the people gave you a certified document. You can either accept that or reject it, if you don't believe it to be credible. However, you can't decide that. It's not for this court to decide whether that certified document, in and of itself, is proper or improper. It's up to the court to say, "that's enough for me or that isn't enough for me". Judge, as I stated, Mr. Newberg made many arguments, of which, many of them, most of them are placed in the court with the case law. Most of them is placed in the fact that this is public property. Judge, there was testimony. Judge, if you read the case law, you'll see that that's the case. There was testimony that this isn't public property. These people didn't want them there. They went to the effort, testifying even in court, signing complaints, being on the property. Warning them, giving them a chance, saying, listen, leave the property, we won't arrest you now if you just pick up your tents and leave. Isn't that enough? Isn't that enough to tell you, listen, if you know, maybe you need to fight this in another jurisdiction. Another court, because obviously these people are owners and they're telling me to get off the property. Judge, they have a certified document. They have the right to do so. To deny them that right would go against the law of trespass... to go against the statutes that we have for certified documents, just because these people believe they... They think they have an unfounded right to be there, Judge. And it's not even based on anything. There's been convictions showing them that they don't have a right to be there. There's been notices telling them, we don't want you there, there's been notices telling you, don't camp here. And yet they say, fine, we still wanna be there. We have a right to be there. Why? Because we have a prescriptive easement. Judge, a prescriptive easement has no standing when it comes to ownership. If I show you certified documents showing you I have ownership that overcomes anything over prescriptive easement. And what kind of prescriptive easement do they have? Because Mr. Anderson was working in the trip tent? Because Ms. Storm has been arrested there a couple of times and has shown up on, you know, other occasions. That's not prescriptive easement, Judge. Prescriptive easement is staying there for a breadth or period of time, for a long period of time, a steady period of time, and not being told to leave, Judge. Every couple of years they're told to leave. And, in fact, on this occasion, every two days they were told to leave. And weeks before they were told not to even come, not to bring tents. Judge, I'll make this short and simple. Basicly, the people believe that they've shown every element. They've shown that these people were unlawfully on the land. They didn't have a right to be there. They were given notice and in all occasions. They even testified they were given notice. Authority was not argued against. And these people testified they had authority and they are authorized agents of the owner, which we proved the certified document. The certified document showed that there was ownership in this case and the people showed the ownership part and the trespass. They admitted they were on the land. Now it's up to the court to state, well, were they rightfully on the land? Well, Judge, all the evidence shows that they weren't rightfully on the land. Just because they thought they had a right to be there, which was unfounded and unreasonable. Mr. Newberg states that, well, because they believed they had a right to be there, they can't violate this law. Well Judge, they can if the court believes that they're belief was unreasonable. An unreasonable believe does not disprove intent. And these people, I mean, they were on the land after being told to leave. They instigated this situation by not leaving. They were told to leave, they said, well you don't have authority. Well, Judge, they do have authority. And that, in and of itself, shows that their belief to be on the land was unreasonable. They may fight it in another court, but at this point there's no proof to disbelieve the ownership of Gelish Realty and Granite Associates. And Judge, there's no basis, under the law... the law may be Ms. Storm's law or Mr. Anderson's law... there's no basis under the law that we, we're here to report, to show that these people have a right to be there, and, I would ask the court to find them all guilty of trespass, and the people have proven every element of the crime.
Judge- All right, we've got hours of testimony here. I can't remember it all off hand, well enough to make a decision right now. So, I'm gonna replay these tapes, read my notes and you'll have my decision within two weeks.
Newberg- Thank you, Your Honor.
Drillings- Thank you, Judge .
Judge- One more thing I wanna tell you both. At the beginning of this trial I told you that these tapes were for my personal use. And they are, and will not be part of the record.
Drillings- Thank you, Judge.
Newberg- Note my exception, Your Honor.
