People v. Powell
| Decision Date | 22 March 1983 |
| Citation | 448 N.E.2d 797,461 N.Y.S.2d 1012,58 N.Y.2d 1009 |
| Parties | , 448 N.E.2d 797 The PEOPLE of the State of New York, Respondent, v. Marvin POWELL, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
The order of the Appellate Division, 89 A.D.2d 825, 454 N.Y.S.2d 167, should be affirmed.
It cannot be said that the evidence was insufficient to sustain the charge of burglary in the third degree simply because the building housed attorneys' offices and the front door was unlocked. Subdivision 5 of section 140.00 of the Penal Law provides that "A person who * * * enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless he defies a lawful order not to enter or remain" (emphasis supplied). The jury could find on the evidence before it that though defendant's entry was licensed, he was not licensed to remain because it was apparent after his entry from the time of the day and the absence of any persons in the reception area or individual offices that the building was not "at the time open to the public".
Nor was it error to decline to charge as requested that "the fact that defendant might have entered with criminal intent does not extinguish his otherwise existing license t enter if the jury finds that such a license exists" (cf. People v. Brown, 25 N.Y.2d 374, 306 N.Y.S.2d 449, 254 N.E.2d 755). Under the circumstances of this case, the requested charge was irrelevant, the only issue being whether defendant remained after discovering that the apparent license to enter did not exist because the building was not at the time open to the public. On that question the charge as given was sufficient.
Order affirmed in a memorandum.
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...the brutal murder: there were obvious signs of struggle and the victim had been severely beaten. See also People v. Powell, 58 N.Y.2d 1009, 448 N.E.2d 797, 461 N.Y.S.2d 1012 (1983) (burglary conviction sustained where jury could find that though defendant's entry was lawful, he was not lice......
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...in a private office building after business hours was not on premises “open to the public,” even though the front door was unlocked. 58 N.Y.2d 1009, 461 N.Y.S.2d 1012, 448 N.E.2d 797, 797–98 (1983). The Court concluded that a jury could find from the evidence that, although the defendant's ......
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