People v. Boettcher
| Court | New York Supreme Court Appellate Division |
| Writing for the Court | BELDOCK |
| Citation | 20 A.D.2d 801,248 N.Y.S.2d 521 |
| Decision Date | 16 March 1964 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Ludwig Anthony BOETTCHER, Jr., Appellant. |
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v.
Ludwig Anthony BOETTCHER, Jr., Appellant.
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Anthony F. Marra, Gerard P. Watson, New York City, for appellant.
Kenneth N. Browne, Hollis, of counsel, Frank D. O'Connor, Dist. Atty., Kew Gardens, for respondent.
Before BELDOCK, P. J., and CHRIST, BRENNAN, RABIN and HILL, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered January 25, 1963 after a nonjury trial, convicting him of unlawful entry and imposing sentence.
Judgment reversed on the law and on the facts, and a new trial granted.
In rendering his decision, the Trial Judge expressed his opinion that the defendant did not have an intent to commit a crime within the premises which he allegedly entered unlawfully. The crime of unlawful entry is committed where '[a] person who, under circumstances * * * not amounting to a burglary, enters a building, or any part thereof, with intent to commit a crime,' and a conviction of that crime may not be sustained in the absence of proof from which an inference might be drawn that the defendant had an intent to commit a crime at the time of the entry (cf. People v. Hamilton, 18 A.D.2d 871, 237 N.Y.S.2d 97; People v. Kelley, 253 App.Div. 430, 433, 3 N.Y.S.2d 46, 48-49).
Although the requisite intent might, perhaps, have been inferred from the circumstances of the entry (cf. People v. Oliver, 4 A.D.2d 28, 31, 163 N.Y.S.2d 235, 239-240, affd. 3 N.Y.2d 684, 171 N.Y.S.2d 811, 148 N.E.2d 874), the Trial Judge's comments indicate that such inference was not in fact drawn. Under the circumstances a new trial is required in the interests of justice.
CHRIST, BRENNAN, HILL and RABIN, JJ., concur.
BELDOCK, Presiding Justice, dissents and votes to affirm the judgment with the following memorandum:
The finding by the Trial Judge of lack of intent related solely to the crime of burglary and not to the crime of unlawful entry. The court said: 'I don't think there is an intent to commit a crime * * * an attempt at burglary, but I think there is an unlawful entry * * *.'
The crime of unlawful entry is not necessarily confined or incidental to the crime of burglary. Entering a building 'with intent to commit a crime'--regardless of the nature of the crime--larceny, assault, malicious
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mischief, etc.--constitutes unlawful entry...To continue reading
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People v. Gaines, No. 1
...not the commission of a crime while on the premises, but the unlawful entry with the intent to commit a crime (see, People v. Boettcher, 20 A.D.2d 801, 248 N.Y.S.2d 521). The intent must exist at the time of gaining entry (see, People v. Hamilton, 18 A.D.2d 871, 237 N.Y.S.2d 97) and it matt......
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People v. Adams
...(People v. Oliver, 4 A.D.2d 28, 31, 163 N.Y.S.2d 235, 239, aff'd 3 N.Y.2d 684, 171 N.Y.S.2d 811, 148 N.E.2d 874; People v. Boettcher, 20 A.D.2d 801, 248 N.Y.S.2d 521), complainant's testimony of such circumstances, particularly of defendant's acts and statements, is not sufficiently corrobo......
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People v. Gaines, No. 1
...not the commission of a crime while on the premises, but the unlawful entry with the intent to commit a crime (see, People v. Boettcher, 20 A.D.2d 801, 248 N.Y.S.2d 521). The intent must exist at the time of gaining entry (see, People v. Hamilton, 18 A.D.2d 871, 237 N.Y.S.2d 97) and it matt......
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People v. Adams
...(People v. Oliver, 4 A.D.2d 28, 31, 163 N.Y.S.2d 235, 239, aff'd 3 N.Y.2d 684, 171 N.Y.S.2d 811, 148 N.E.2d 874; People v. Boettcher, 20 A.D.2d 801, 248 N.Y.S.2d 521), complainant's testimony of such circumstances, particularly of defendant's acts and statements, is not sufficiently corrobo......