MEMORANDUM OF LAW

To: Supervising Attorney

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,