People v. King

• Decision Date: 29 March 1984
• Citation: 61 N.Y.2d 550,475 N.Y.S.2d 260,463 N.E.2d 601
• Parties: , 463 N.E.2d 601 The PEOPLE of the State of New York, Respondent, v. Anthony KING, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 260

475 N.Y.S.2d 260

61 N.Y.2d 550, 463 N.E.2d 601

The PEOPLE of the State of New York, Respondent, v. Anthony KING, Appellant.

Court of Appeals of New York.

March 29, 1984.

[61 N.Y.2d 551] Susan Hofkin Salomon and William E. Hellerstein, New York City, for appellant.

[61 N.Y.2d 552] Robert M. Morgenthau, Dist. Atty., Brooklyn (Clara S. Licata, New York City, and Amyjane Rettew, Brooklyn, of counsel), for respondent.

OPINION OF THE COURT

COOKE, Chief Judge.

That element of a crime of burglary which requires that a person "enter * * * in a building" is met when the person or any part of his body intrudes within the building. Additionally, the recessed entry area of a store abutting the sidewalk, enclosed by display windows, a door, a roof and a security gate at the sidewalk line may be deemed part of a "building" under the Penal Law. Thus, evidence that defendant was found crouched beside a one-foot-square hole which had been cut in a metal gate extending across the front of a jewelry store, and pulling and pushing on the gate, is sufficient to establish attempted entry into a building for purposes of a conviction for attempted burglary in the third degree.

Two plain-clothes police officers sitting in an unmarked car observed defendant in front of a jewelry store on Fifth Avenue in New York City at approximately 4:30 a.m. on a Sunday. The store, which was well lit by street lamps and the lights in its display windows and vestibule, was guarded by a metal gate that covered the entire storefront where it abutted the sidewalk and prevented access to the front door and the display cases. The officers saw defendant crouched and making pulling and pushing motions on the gate while holding an unidentified object in his right hand. When defendant looked in the officers' direction, he switched the object to his left hand and began running north on Fifth Avenue. The police gave chase and, after losing sight of defendant for a moment, apprehended him beside a construction site and handcuffed him. The officers did not see defendant dispose of any object during the chase. Upon returning to the jewelry store, the officers noticed that several metal bars from the gate were strewn inside the vestibule, leaving a hole approximately one-foot square. A search of defendant yielded a claw hammer inside a paper bag in defendant's left coat pocket. The evidence at trial established that the metal bars had been detached by means of a cutting instrument, such as bolt cutters; however, a search of the entire area did not produce any such tool.

Similar to many storefronts, the doorway to the jewelry store is recessed about 15 feet from the sidewalk in a vestibule with a roof formed by the second floor of the building, and lined on both sides by glass display windows that extend out to and face the sidewalk. After business hours, the entrance to the vestibule is closed to pedestrians by the metal gate described above, which is designed to deter would be intruders while permitting passers-by to view the displays. The gate had been cut to the left of the center, about two feet distant from one of the display windows.

A jury convicted defendant of attempted burglary in the third degree and possession of burglar's tools. The Appellate Division, 94 A.D.2d 983, 463 N.Y.S.2d 348 affirmed the judgment, without opinion.

Defendant makes two arguments that are founded on the factual predicate that he did not possess a tool for cutting the gate's metal bars and widening the hole. Defendant urges that his conviction should be reversed because it was factually impossible for him to have introduced his entire body into the building area, which, he argues, is legally required for a burglary conviction. Thus, he contends that he could not have completed the crime of burglary. Alternatively, defendant asserts that the evidence was insufficient to establish attempted burglary because the vestibule is not a "building" within the meaning of the Penal Law, and he only had the means to put his arm through the gate into the vestibule. Neither argument is persuasive. This court now affirms.

In order to commit "burglary in the third degree," a person must "knowingly enter[ ] or remain[ ] unlawfully in a building with intent to commit a crime therein" (Penal Law, § 140.20). Although the Penal Law defines "enter or remain unlawfully" (see Penal Law, § 140.00, subd. 5), it does not provide any insight into whether entry by the entire body is required.

At common law, "entry" for purposes of burglary was accomplished by insertion of any part of the body into the premises for the purpose of committing a felony (see People v. Tragni, 113 Misc.2d 852, 856, 449 N.Y.S.2d 923; Commonwealth v. Lewis, 346 Mass. 373, 191 N.E.2d 753, cert. den. 376 U.S. 933, 84 S.Ct. 704, 11 L.Ed.2d 653; State v. Pigques, 310 S.W.2d 942, 945 [Mo.]; 3 Wharton's Criminal Law [Torcia-14th ed.], § 332). Under the former Penal Law, the term "enter" was essentially a codification of the common-law definition (see Penal Law of 1909, § 400, subd. 4). When the Legislature enacted the present statute, this definition was deleted. This does not mean, however, that the current amendment was meant to alter the...