People v. Green

• Decision Date: 20 June 1988
• Parties: The PEOPLE, etc., Respondent, v. Maurice GREEN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 852

529 N.Y.S.2d 852

141 A.D.2d 760

The PEOPLE, etc., Respondent, v. Maurice GREEN, Appellant.

Supreme Court, Appellate Division,

Second Department.

June 20, 1988.

Alan R. Sirlin, Brooklyn, for appellant.

Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Miriam R. Best and Daniel B. Singer, of counsel), for respondent.

Before BRACKEN, J.P., and KUNZEMAN, RUBIN and SPATT, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Deeley, J.), rendered May 2, 1984, convicting him of burglary in the second degree, robbery in the third degree and criminal mischief in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed.

The evidence adduced at trial establishes that on July 22, 1983, at approximately 6:30 A.M., the defendant forcibly took property from the victim, after he had unlawfully entered into the garage of her residence at 1208 Eastern Parkway, Brooklyn, New York. On appeal, the defendant argues that since the evidence reveals that there was no interconnecting doorway between the victim's garage and her house, the garage was not part of a "dwelling", so that the People failed to prove an essential element of burglary in the second degree (Penal Law § 140.25[2]; § 140.00[3] ).

The defendant did not raise this specific argument either at the time of his motion to dismiss at the close of the People's case or at the time of his motion to dismiss at the close of the trial. This argument was, however, raised at the time of sentencing. Assuming, without necessarily deciding, that the issue is, under these circumstances, reviewable as a matter of law ( but see, People v. Bynum, 70 N.Y.2d 858, 523 N.Y.S.2d 492, 518 N.E.2d 4; People v. Gomez, 67 N.Y.2d 843, 501 N.Y.S.2d 650, 492 N.E.2d 778; People v. Dekle, 56 N.Y.2d 835, 452 N.Y.S.2d 568, 452 N.E.2d 101; People v. Stahl, 53 N.Y.2d 1048, 442 N.Y.S.2d 488, 425 N.E.2d 876; People v. Cardona, 136 A.D.2d 556, 523 N.Y.S.2d 552, appeal denied 70 N.Y.2d 1004, 526 N.Y.S.2d 939, 521 N.E.2d 1082; People v. Patel, 132 A.D.2d 498, 518 N.Y.S.2d 384, appeal denied 70 N.Y.2d 935, 524 N.Y.S.2d 687, 519 N.E.2d 633), we conclude that the defendant's argument is without merit.

Pursuant to the definition of the term "building" contained in the Penal Law § 140.00(2), the victim's garage, which was located under her house, must be considered part of the main building. Penal Law § 140.00(2), provides that "where a building consists of two or more units separately secured or occupied, each unit shall be deemed * * * a part of the main building". In accordance with this definition, we have previously held that an attached garage may be considered as part of the main house and thus as part of a "dwelling" within the meaning of Penal Law § 140.25(2) (see, People v. Stevenson, 116 A.D.2d 756, 757, 498 N.Y.S.2d 47, appeal denied 67 N.Y.2d 890, 501 N.Y.S.2d 1042, 492 N.E.2d 1249).

We are not persuaded by the argument that People v. Stevenson (supra ) should not be considered controlling because, in that case, the garage in question was linked to the main residence by an interconnecting door. Other courts, interpreting similar statutes, have rejected such a distinction and have held that an attached garage, even without an interconnecting door, constitutes part of the main dwelling ( see e.g., People v. Moreno, 158 Cal.App.3d 109, 204 Cal.Rptr. 17; Burgett v. State, 161 Ind.App. 157, 314 N.E.2d 799 [basement which was not directly accessible from living area held part of dwelling]; see also, Jones v. State, 690 S.W.2d 318 [Tex.App]; White v. State, 630 S.W.2d 340 [Tex.App.]; People v. Coutu, 171 Cal.App.3d 192, 217 Cal.Rptr. 191). Since the garage in the present case was structurally part of a building which was used for overnight lodging of various persons, it must be...