People v. Gaines

• Decision Date: 03 February 1989
• Docket Number: No. 1,1
• Citation: 147 A.D.2d 891,537 N.Y.S.2d 360
• Parties: PEOPLE of the State of New York, Respondent, v. Cornelius GAINES, Appellant. Appeal
• Court: New York Supreme Court — Appellate Division

Page 360

537 N.Y.S.2d 360

147 A.D.2d 891

PEOPLE of the State of New York, Respondent, v. Cornelius GAINES, Appellant. Appeal No. 1.

Supreme Court, Appellate Division,

Fourth Department.

Feb. 3, 1989.

Edward J. Nowak by Brian Shiffrin, Rochester, for appellant.

Howard Relin by Elizabeth Clifford, Rochester, for respondent.

Before DOERR, J.P., and DENMAN, BALIO, LAWTON and DAVIS, JJ.

MEMORANDUM:

Defendant appeals from his conviction of burglary in the third degree and petit larceny, asserting that the court erred in refusing to instruct the jury that, in order to find defendant guilty of burglary, it would have to find that he had the intent to commit the crime of larceny at the time of his unlawful entry into the building. Instead, the court charged, in the terms of the statute (Penal Law § 140.20), as follows:

A person is guilty of burglary in the third degree when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein.

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(F)ourth, that at the time of his unlawful entry or remaining he intended to commit a crime within the building * * * the crime of burglary is complete when a person knowingly and unlawfully enters or remains in a building with the intent at that time to commit a crime therein.

That was a correct charge. A person enters or remains unlawfully when he has no license or privilege to be there (see, People v. King, 61 N.Y.2d 550, 554, 475 N.Y.S.2d 260, 463 N.E.2d 601).

The dissenters would parse the statute so as to drain it of its conventional and long recognized meaning.

All concur, except LAWTON and DAVIS, JJ., who dissent and vote to reverse.

DAVIS, Justice, dissents in the following Memorandum:

I respectfully dissent. Defendant was indicted and charged with burglary in the third degree in violation of Penal Law § 140.20 and petit larceny in violation of Penal Law § 155.25 after he was apprehended by police inside a building owned by Standard Builder's Supply Corporation on Scottsville Road, Chili, New York. A deputy sheriff, responding to the call of a burglary in progress, observed footprints in the snow leading to an open window in the building. Defendant was apprehended in the vicinity of the open window. He was wearing coveralls and a jacket that belonged to an employee of the company and had writing pens bearing the Standard Builder's Supply inscription in his pocket. The plant manager's desk drawer was open and papers on top of the desk appeared to be disturbed. Defendant testified that he entered the building seeking shelter because of the inclement weather. Defense counsel requested the court to instruct the jury that in order to find defendant guilty of burglary, he must have had the intent to commit the crime of larceny at the time of the initial unlawful entry into the building. The court declined to charge as requested and informed counsel that it intended to use the standard charge contained in the Criminal Jury Instructions (2 CJI [NY], Penal Law § 140.20). The court further denied defense counsel's request to omit the phrase "or remains" from the definition of third degree burglary. The court instructed the jury that:

A person is guilty of burglary in the third degree when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein ...

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[F]ourth, that at the time of his unlawful entry or remaining he intended to commit a crime within the building ... the crime of burglary is complete when a person knowingly and unlawfully enters or remains in a building with the intent at that time to commit a crime therein ...

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In this case, the People maintain that the defendant knowingly entered or remained with intent to commit larceny, which is a crime.

During deliberations the jury sought clarification regarding the charge, asked the court to explain the difference between burglary and trespass and asked whether the intent to commit a crime had to occur before entering the building or whether intent could be formed after the entry. The court repeated its earlier instruction and again denied the request to exclude the phrase "or remains" from its definition of burglary in the third degree. The jury returned a verdict finding defendant guilty of burglary in the third degree and petit larceny. Defendant does not challenge the petit larceny conviction.

Defendant contends that the trial court committed reversible error by refusing to charge the jury that in order to find defendant guilty of burglary in the third degree the intent to commit a crime must precede or be contemporaneous with entry into the building. I find this argument persuasive (see, McCourt v. People, 64 N.Y. 583, 586; People v. Samuel, 20 A.D.2d 919, 249 N.Y.S.2d 607; People v. Kelley, 253 A.D. 430, 433, 3 N.Y.S.2d 46). The trial court's inclusion of the phrase "or remains" on the facts of this case improperly permitted the jury to find defendant guilty of third degree burglary even if it concluded that the intent to commit a crime was formed subsequent to the unlawful entry.

At common law, a burglary occurred upon a breaking and entering into another's dwelling house at night with the intent to commit a felony therein (Rothblatt, The Revised Penal Law, Criminal Law of New York, § 257). The common law elements of the crime have been changed both by statute and case law. Essentially, the statute has expanded the scope of the offense. Penal Law § 140.20 provides that burglary in the third degree occurs when one knowingly enters or remains unlawfully in a building with the intent to commit a crime therein. The statute prohibits not only entering unlawfully but also remaining unlawfully (see, Penal Law §§ 140.00[5]; 140.20). The terms "knowingly enters or remains unlawfully" are used in the disjunctive; they are separate and discrete, each intended to be applicable to different circumstances. The word "remain" in the phrase "enter or remain" is designed to apply to those cases in which a person enters a building with a license or privilege, but remains in the building after the termination of such license or privilege (People v. Licata, 28 N.Y.2d 113, 117, 320 N.Y.S.2d 53, 268 N.E.2d 787; Donnino, Practice Commentary, McKinney's Cons.Laws of N.Y., Book 39, Penal Law § 140.00; Rothblatt, The Revised Penal Law, Criminal Law of New York, § 257, supra; see also, People v. Powell, 58 N.Y.2d 1009, 461 N.Y.S.2d 1012, 448 N.E.2d 797). This conclusion is supported by the fact that the phrase "or remains" is contained in brackets in the Criminal Jury Instructions which suggests that this language is to be charged only under an appropriate fact pattern (see, 2 CJI [NY], Penal Law § 140.20). The phrase "remains unlawfully" in Penal Law § 140.20 does not apply to the facts of this case because it is unrefuted that defendant's initial entry was not authorized.

"The purpose of the...