People v. Lewis

• Citation: 5 N.Y.3d 546,840 N.E.2d 1014
• Parties: The PEOPLE of the State of New York, Respondent, v. Craig LEWIS, Appellant.
• Decision Date: 21 November 2005
• Court: New York Court of Appeals Court of Appeals

Page 1014

840 N.E.2d 1014

5 N.Y.3d 546

The PEOPLE of the State of New York, Respondent, v. Craig LEWIS, Appellant.

Court of Appeals of New York.

November 21, 2005.

Center for Appellate Litigation, New York City (Carl S. Kaplan and Robert S. Dean of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York City (David M. Cohn and Mary C. Farrington of counsel), for respondent.

OPINION OF THE COURT

ROSENBLATT, J.

A key element of burglary, which elevates it from trespass, is the defendant's intent to commit a crime inside a building. A defendant who knowingly enters or remains unlawfully in a dwelling is guilty of second-degree trespass, a class A misdemeanor (Penal Law § 140.15). That crime is elevated to second-degree burglary when the defendant intends to commit a crime inside the dwelling (Penal Law § 140.25[2]).¹

This appeal implicates whether the violation of an order of protection may serve as the intended crime underlying a burglary. We hold that the "intent to commit a crime therein" element of burglary (Penal Law § 140.25) may be satisfied by a defendant's intent to engage in conduct prohibited by an order of protection while in the banned premises. That element, however, is not satisfied solely by a defendant's intent to violate an order of protection by entering the dwelling that the order of protection declares off limits.²

We further conclude that the prosecution presented legally sufficient evidence that defendant, at the time he entered, intended to engage in conduct prohibited by orders of protection in the victim's dwelling after entry.

I.

Defendant was arrested three times in 2001 following incidents at complainant's apartment. In January 2001, he was arrested for damaging her property. Nevertheless, she allowed defendant to move into her apartment, in February 2001, after he lost his job. In April 2001, the Criminal Court of the City of New York issued an order of protection requiring him to stay away from her and from her home until April 25, 2004.³ However, complainant once more allowed defendant to return to the apartment.

In the early hours of July 24, 2001, defendant and complainant got into an argument at her apartment and defendant struck her over the head with a plate. She was taken to the hospital and received six stitches. Defendant was again arrested. On July 30, 2001, Criminal Court issued another order of protection.⁴ Again, she allowed defendant back into her apartment a few days after he got out of jail.

On August 17 or 18, 2001, complainant told defendant to leave her residence, took her apartment keys from him and went to stay with a friend. On August 19, 2001, while both orders of protection were in effect, defendant entered her apartment without her knowledge. The jury heard evidence that the fire escape ladder leading to the apartment was pulled down to street level and that one of her apartment windows showed signs of tampering.

In the early hours of August 20, 2001, complainant returned to her apartment and found defendant there. She told him to get out and, when he refused and began swearing at her, she went downstairs to call the police from a pay phone. Defendant kicked her and continued to swear at her as she went down the steps. Later, the police found her pocketbook and some of her papers scattered on the ground below her apartment windows. Police arrested defendant a third time. With respect to the last incident, defendant was charged with burglary in the second degree (Penal Law § 140.25[2]) and criminal contempt in the second degree (Penal Law § 215.50[3]).⁵

During trial, defense counsel asked the trial judge to instruct the jury that the "intent to commit a crime therein" element of burglary could be satisfied only if it were proven that, at the time of entry, defendant intended to commit some crime in addition to unlawful entry. The trial court refused the request, and instead gave a standard jury instruction on second-degree burglary, largely based on CJI2d (N.Y.) Penal Law § 140.25(2) (revised Oct. 25, 2001). The court instructed the jury that there are three elements of second-degree burglary (Penal Law § 140.25[2]): first that defendant entered a dwelling, second that he knew the entry to be unlawful and, third, and here most critically, that he intended "to commit a crime therein" (emphasis supplied).

With only the burglary count undecided, the jury returned a partial verdict acquitting defendant of assault (relative to the July 24, 2001 event) but finding him guilty of criminal contempt in the first degree (Penal Law § 215.51[b][v]) for the July 24, 2001 event and criminal contempt in the second degree (Penal Law § 215.50[3]) for the August 20, 2001 episode.⁶ As it was about to adjourn for the day, the jury delivered a note asking about the relevance of defendant's criminal contempt to the "intent to commit a crime therein" element of burglary.

The prosecutor suggested instructing the jury that criminal contempt can be the basis for the "intent to commit a crime therein" element of burglary. Defendant's attorney acquiesced by telling the trial court that he did not "have to[o] much problem" with the prosecutor's proposal. Defense counsel then asked for the following formulation: "you should say, if it is your general question as to whether... the crime constitut[ing] contempt can be the basis for a burglary charge, the answer is yes." The trial court followed defense counsel's proposal almost to the word. The jury then quickly reached a verdict finding defendant guilty of second-degree burglary (Penal Law § 140.25[2]).

The Appellate Division affirmed and a Justice of that Court granted defendant leave to appeal. We affirm.

II.

Defendant claims that the burglary conviction is flawed because the court had improperly refused to instruct the jury that intent to enter the banned premises cannot alone satisfy the "intent to commit a crime therein" element of burglary. On this record, defendant's claim fails. Appropriately, the court charged the jury as to the three elements of burglary, the third being the intent to commit a crime therein. Indeed, the court used the word "therein" five times in its initial instruction regarding burglary. By tracking the statute and the CJI language, the court conveyed to the jury that it could not find defendant guilty unless it concluded that he intended to commit a crime inside the apartment, after having entered it.

When the jury later presented its note seeking supplemental instruction, defense counsel expressly asked the court to tell the jury that a violation of an order of protection can "be the basis for a burglary charge." Defendant therefore forfeited appellate review of the issue of whether the trial court's charge, as a whole, could have misled the jury into thinking that intent to enter an apartment in violation of an order of protection could alone satisfy the "intent to commit a crime therein" element of burglary.

While it is true that an attorney need not repeatedly protest a court's clear ruling, defense counsel's formulation of the supplementary instruction went far beyond mere failure to protest and constitutes a forfeiture. Indeed, the court fully adopted the defendant's language. He cannot now be heard to complain that the court failed to explain to the jury that the "intent to commit a crime therein" element of burglary cannot be satisfied solely by proof that defendant intended to enter the apartment in violation of orders of protection.

III.

Unlawful entry cannot itself be used as the sole predicate crime in the "intent to commit a crime therein" element of burglary. If it could, every violation of a do-not-enter provision of an order of protection would become a burglary the instant defendant knowingly entered upon the banned premises. Here, however, evidence presented to the jury was legally sufficient to prove that when defendant entered the apartment, he intended to commit a crime in the apartment other than his trespass.

The jury heard evidence that defendant was arrested in January 2001 for damaging complainant's property and pleaded guilty to the charge; that, less than a month before the August 20, 2001 incident, defendant got into an argument with the victim in her apartment and struck her over the head with a plate, causing her serious injury; that, at the time of the August 20, 2001 incident, the fire escape ladder leading to the victim's apartment had been pulled down to street level, and one of her apartment windows showed signs of tampering; that, at the time of the August 20, 2001 incident, complainant's pocketbook and some of her papers were strewn on the ground below her apartment windows; that, in the early hours of that day, defendant swore at the victim when she told him to leave her apartment and kicked her as she went downstairs to call the police; and that, as he was being arrested, defendant told her "You are through" or "You're going to pay for this."

This evidence enabled the jury to infer that defendant intended to commit a crime inside the apartment, by violating the orders of protection in a manner that went beyond trespass. The People were required to allege and prove only defendant's general intent to commit a crime in the apartment (in addition to unlawful entry itself), not his intent to commit a specific crime (see People v. Mackey, 49 N.Y.2d 274, 278-281, 425 N.Y.S.2d 288, 401 N.E.2d 398 [1980]). "In order to secure a conviction for burglary, the People need only allege and prove a knowing and unlawful entry coupled with an intent to commit a crime therein. There is no requirement that the People allege or establish what particular crime was intended" (People v. Mahboubian, 74 N.Y.2d 174, 193, 544 N.Y.S.2d 769, 543 N.E.2d 34 [1989]).⁷

There was evidence enabling the jury to conclude that, when he entered the apartment, defendant intended to harass, menace, intimidate, threaten or interfere with complainant in her...