People v. Barney
| Decision Date | 03 May 2002 |
| Docket Number | 4,00-01769 |
| Parties | PEOPLE OF THE STATE OF NEW YORK,, v EARL BARNEY,KA 00-01769 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FOURTH JUDICIAL DEPARTMENT Decided on |
| Court | New York Supreme Court — Appellate Division |
Appeal from a judgment of Supreme Court, Monroe County (Fisher, J.), entered April 27, 2000, convicting defendant after a jury trial of, inter alia, burglary in the second degree.
EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (SHIRLEY A. GORMAN OF COUNSEL), FOR DEFENDANT-APPELLANT.
HOWARD R. RELIN, DISTRICT ATTORNEY, ROCHESTER (KELLY CHRISTINE WOLFORD OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
It is hereby ORDERED that the judgment so appealed from be and the same hereby is affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a jury trial of burglary in the second degree (Penal Law § 140.25 [2]) and attempted petit larceny (§§ 110.00, 155.25). Defendant contends that the People failed to establish that the building he entered unlawfully was a dwelling (see § 140.00 [3]) and that his conviction of burglary in the second degree therefore is not supported by legally sufficient evidence. Defendant contends in the alternative that Supreme Court erred in denying his request to charge burglary in the third degree (§ 140.20) as a lesser included offense of burglary in the second degree.
The building at issue is a single-family house in the Town of Greece. The sole occupant (decedent) was killed in a motor vehicle accident on August 21, 1999. Prior to his death, decedent had been renting the house from his mother. On August 23, 1999, during a conversation with friends, defendant learned that decedent had died two days earlier and that he had kept marijuana at his house. In the early morning hours of August 24, defendant entered the house intending to steal the marijuana. A neighbor, aware that decedent had died and that his house was unoccupied, observed defendant creeping along the bushes outside decedent's house, and then observed what appeared to be a light in an upstairs bedroom. The neighbor called the police, who apprehended defendant inside the house. At the time of the burglary, the house remained furnished, the utilities were connected, there was food in the refrigerator and decedent's possessions remained in the house.
Defendant contends that the building at issue lost its character as a dwelling upon the death of the sole occupant. We disagree. Although prior to 1967, burglary in the second degree required proof of another person's actual presence in the building wrongfully entered (see Penal Law former § 403), the Penal Law as revised requires only that the building be a dwelling (see § 140.25 [2]). A dwelling is defined as "a building which is usually occupied by a person lodging therein at night" (§ 140.00 [3]). A dwelling does not lose its character as a dwelling based on the temporary absence of its occupant (see People v Quattlebaum, 91 N.Y.2d 744, 748). In cases where an occupant is temporarily absent, a dwelling retains its character as such if the building was adapted for occupancy at the time of the wrongful entry, the occupant intended to return, and, on the date of the entry, a person could have occupied the building overnight (see id., citing People v Sheirod, 124 A.D.2d 14, 17, lv denied 70 N.Y.2d 656). In this case, the building at issue was adapted for occupancy and a person could have occupied it overnight. We disagree with the dissent that the fact that the occupant had died and could no longer harbor an intent to return to the house compels the conclusion that it lost its character as a dwelling. Rather, we conclude, as did the Court of Appeals of Minnesota in a recent case involving similar facts, that a building retains its character as a dwelling despite the death of the occupant when it has been used as a residence in the "immediate past" and has not been abandoned (State v Edwards, 589 N.W.2d 807, 811; cf. People v Ramos, 52 Cal App 4th 300, 302; People v Hider, 135 Mich App 147, 151-153, 351 N.W.2d 905, 907-908). Here, a consideration of all the relevant factors supports the conclusion that the dwelling retained its character as such based upon its immediate past residential use.
The holding of the Court of Appeals in Quattlebaum (91 N.Y.2d at 748-749) does not compel the result advanced by the dissent. That case involved the issue whether a school building, concededly not a dwelling, could be perceived as such for purposes of convicting defendant of burglary in the second degree. The Court held that it could not, although a fifth floor office contained a bed and it was theoretically possible for someone to have stayed overnight. That holding does not impact the present case, where the building was a dwelling and had been occupied until three days before the burglary. Nor does our decision in People v Murray (278 A.D.2d 898, lv denied and dismissed 96 N.Y.2d 804) compel a different result. In that case, the upstairs apartment of the two-apartment residential unit at issue had been vacant for several months, and the downstairs apartment was vacant and had been boarded up by the landlord several weeks earlier. Thus, in Murray the building had not been used as a residence in the "immediate past" (Edwards, 589 N.W.2d at 811).
Contrary to defendant's alternative contention, this is not a case in which the issue whether the building was a dwelling is for the jury. Here, there is no reasonable view of the evidence to support a finding that the dwelling had lost its residential character, and thus there is no reasonable view of the evidence that defendant committed the lesser offense of burglary in the third degree but not the greater offense (see People v Glover, 57 N.Y.2d 61, 63). We therefore conclude that the court did not err in denying defendant's request for a charge down to burglary in the third degree.
All concur except Green and Hurlbutt, JJ., who dissent in part and vote to modify in accordance with the following Memorandum: We respectfully dissent in part. We conclude that, upon the death of its sole occupant, the building at issue lost its character as a dwelling within the meaning of Penal Law § 140.00 (3) and that the evidence is therefore legally insufficient to support defendant's conviction of burglary in the second degree (§ 140.25 [2]). No reported decision in this State addresses the issue whether, for purposes of Penal Law article 140, a building loses its character as a dwelling upon the death of its sole occupant. Under the common law, burglary was defined as breaking and entering into the dwelling house of another in the nighttime with intent to commit a felony therein (see 4 Blackstone, Commentaries on the Laws of England, at 222-228 [1857]). There were no degrees of burglary (see Quinn v People, 71 NY 561, 569), and burglary could be committed only in a dwelling (see 3 Torcia, Wharton's Criminal Law § 325, at 251 [15th ed]). The requirement that the structure unlawfully entered be a dwelling was crucial "because common-law burglary found its theoretical basis in the protection of man's right of habitation" (LaFave, Criminal Law§ 8.13, at 887 [3d ed]; see Marks & Paperno, Criminal Law in New York Under the Revised Penal Law§ 280, at 332 [1984]). Thus, if a structure was used for habitation, it qualified as a dwelling forpurposes of the common-law crime of burglary even when its occupants were absent (see Note, Statutory Burglary The Magic of Four Walls and a Roof, 100 U Pa L Rev 411, 419 [1951]). The structure, however, had to be regularly occupied overnight, and not merely be suitable for habitation (see 12A CJS, Burglary § 29).
In New York, the common-law definition of burglary has undergone statutory expansion and refinement, but the crime of burglary has never lost its theoretical underpinnings as an offense against habitation. In their original statutory formulations, the most serious burglary crimes, burglary in the first and second degrees, could be committed only in "the dwelling-house of another," and only if a human being was present in the dwelling house at the time of the unlawful entry (Penal Code of 1881 §§ 496, 497]; see former Penal Law §§ 402, 403). The term "dwelling-house" was defined, consistent with the common law, as "[a] building, any part of which is usually occupied by a person lodging therein at night" (former Penal Law § 400).
As the majority points out, the revised Penal Law, enacted in 1967, eliminated the requirement of the actual presence of a human being as an essential element of burglary in the first and second degrees (see People v Quattlebaum, 91 N.Y.2d 744, 747; People v Sheirod, 124 A.D.2d 14, 17, lv denied 70 N.Y.2d 656; Marks & Paperno, at 335). At the same time, however, the revised statute retained the most severe penalties for the burglary of a dwelling. Like its common-law and statutory ancestors, burglary in the first degree under the current statute can be committed only in a dwelling (see § 140.30). Burglary in the second degree can be committed in a dwelling (see § 140.25 [2]) or in a building that is not a dwelling if certain aggravating circumstances are present (see § 140.25 [1]). The common law and prior statutory formulations are preserved virtually intact in the current definition of "dwelling" as "a building which is usually occupied by a person lodging therein at night" (§ 140.00 [3]).
The definition of "dwelling" under the revised Penal Law encompasses structures that are vacant at the time of the burglary, even for an extended period, as long as the vacancy is temporary (see Sheirod, 124 A.D.2d at 17). Indeed, it is now firmly established that "a dwelling does not lose its character as such merely because its occupant is temporarily absent" (Quattlebaum, 91 N.Y.2d at 748 [emphasis added]; see People v Ferguson, 285 A.D.2d 838, 839; People v Melendez, 148 A.D.2d 964,...
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