People v. Ludlowe
| Decision Date | 11 January 1983 |
| Parties | PEOPLE of the State of New York v. Chester LUDLOWE. |
| Court | New York Supreme Court |
Braverman & Rost, Brooklyn (Alfred Braverman, Brooklyn, of counsel), for defendant.
Elizabeth Holtzman, Dist. Atty. (Harvey Soss, Brooklyn, of counsel), for the People.
Defendant moves to reargue the denial of a motion to dismiss the indictment as it pertains to a count therein charging burglary in the first degree, contending that the evidence before the grand jury was not legally sufficient to establish the commission of the offense charged.
The motion to reargue is granted and upon reargument, the court adheres to its original determination for the reasons which are hereinafter set forth.
Penal Law section 140.30 provides as follows:
"A person is guilty of burglary in the first degree when he knowingly enters or remains unlawfully in a dwelling with intent to commit a crime therein ..." (emphasis supplied).
Penal Law section 140.00 subdivision 5 defines "enter or remain unlawfully" in part as follows:
The evidence presented before the grand jury shows in substance that the defendant was introduced to the complainant by an individual known as "Duck" who then left the two of them on the stoop to complainant's house. Duck returned a little while later and asked the defendant to "rip off" the complainant, because he, Duck, needed money for drugs. Defendant continued chatting for a while with complainant and then accompanied him into his apartment, carrying the groceries complainant had purchased earlier. Once inside the apartment, the defendant grabbed the complainant in an armlock, threw him onto the bed and took money from his pocket.
The defendant maintains that this evidence at most indicates an intent to commit a crime but that as an invited guest of the complainant he was privileged to enter and remain in the apartment. Thus, he argues a material element of burglary in the first degree (knowingly enter or remain unlawfully) is lacking and the indictment should be dismissed.
It has been repeatedly held that one who enters unchallenged a place open to the public has a privilege to be there and cannot be found guilty of the crime of burglary (People v. Brown, 25 N.Y.2d 374, 306 N.Y.S.2d 449, 254 N.E.2d 755; People v. Jones, 50 A.D.2d 750, 376 N.Y.S.2d 155; People v. Ennis, 37 A.D.2d 573, 322 N.Y.S.2d 341, aff'd 30 N.Y.2d 535, 330 N.Y.S.2d 384, 281 N.E.2d 180). This is, of course, consistent with the express provisions of the definition contained in Penal Law section 140.00 subdivision 5 set forth supra. The instant case, however, does not involve a public place but rather a private place which defendant had no right or privilege to enter, absent complainant's permission.
Under the old Penal Law, there is no question that defendant would be subject to a charge of burglary in the first degree. Section 402 of the old Penal Law provided:
"A person who, with intent to commit some crime therein, breaks and enters ... the dwelling-house of another ... is guilty of burglary in the first degree."
Section 400 subdivision 3 then defined break as:
Clearly under these provisions, the allegation against defendant would rise to the level of burglary. Under the Penal Law as it now stands, however, the matter would appear to be somewhat ambiguous.
In my view, where permission to enter a private...
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Millio v. Barkley
...is entering or remaining unlawfully. E.g., People v. Dupree, 122 A.D.2d 852, 505 N.Y.S.2d 719, 720 (1986); People v. Ludlowe, 117 Misc.2d 567, 458 N.Y.S.2d 833, 835 (Sup.Ct.1983). Accordingly, I find that there was sufficient evidence for a rational trier of fact to conclude that petitioner......
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Ex parte Gentry
...(1986) (emphasis added); see People v. Gaines, 74 N.Y.2d 358, 546 N.E.2d 913, 916, 547 N.Y.S.2d 620 (1989); People v. Ludlowe, 117 Misc.2d 567, 458 N.Y.S.2d 833, 835 (Sup.Ct.1983). On the other hand, the State relies on a series of cases from the Court of Criminal Appeals that allow juries ......
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...has been recognized in several decisions at nisi prius as well as the Practice Commentaries to the Penal Law (see, People v. Ludlowe, 117 Misc.2d 567, 458 N.Y.S.2d 833; People v. Hutchinson, 124 Misc.2d 487, 477 N.Y.S.2d 965; Hechtman, Practice Commentaries, McKinney's Cons.Laws of N.Y., Bo......
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Johnson v. State
...Such entries are similar to the constructive breaking at common law." 584 P.2d at 1308 (citations omitted). In People v. Ludlowe, 117 Misc.2d 567, 458 N.Y.S.2d 833 (1983), the defendant gained entry into the victim's house by offering to carry his groceries. Once inside, he robbed the victi......