People v. Quattlebaum

• Decision Date: 11 June 1998
• Citation: 698 N.E.2d 421,91 N.Y.2d 744,675 N.Y.S.2d 585
• Parties: , 698 N.E.2d 421, 1998 N.Y. Slip Op. 5922 The PEOPLE of the State of New York, Respondent, v. Tyrone QUATTLEBAUM, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 585

675 N.Y.S.2d 585

91 N.Y.2d 744, 698 N.E.2d 421, 1998

N.Y. Slip Op. 5922

The PEOPLE of the State of New York, Respondent, v. Tyrone QUATTLEBAUM, Appellant.

Court of Appeals of New York.

June 11, 1998.

Andrew E. Abraham, New York City, and Daniel L. Greenberg for appellant.

Robert M. Morgenthau, District Attorney of New York County, New York City (Rahul Kale and Norman Barclay, of counsel), for respondent.

OPINION OF THE COURT

TITONE, Judge.

Today we determine whether a "dwelling" has been burglarized if a person wrongfully enters the first floor offices of a school, where a fifth floor school office contains a bed that is used for an occasional overnight stay. We hold that such a building is not a dwelling within the definition of second degree burglary and reduce appellant's conviction to third degree burglary, the burglary of a building that is not a dwelling.

The building at issue, the Convent School of the Religious of the Sacred Heart in Manhattan has seven floors, two below grade and five above. The basement contains employee lockers; the first floor, administrative offices; the second, a chapel, and the third and fourth floors, classrooms. On the fifth floor are a conference room, an art room and a kitchen, but primarily offices for faculty use when school is in session. One of the offices has a bed, and another has a chair which can be used for sleeping. The school's Administrator testified that the bed in the office was "rarely" used for overnight guests, estimating between 20 or 30 occasions per year, when someone was working late or when needed by a visiting priest. No one was staying overnight on the fifth floor on the night in question.

Employed as a member of the cleaning and weekend reception staff, defendant had keys to the school, and was free to come and go at any time whether for work or to obtain personal items from his locker in the basement. His keys, however, did not permit access to the two first floor offices. On June 6, 1993, defendant and his brother, who was separately convicted, broke into the first floor offices and took various items.

The Appellate Division determined that the fifth floor office with a bed in it was enough to make the building a dwelling within the second degree burglary statute (241 A.D.2d 315, 659 N.Y.S.2d 466). The fifth floor " 'guest' quarters" were "structurally adapted for overnight accommodation" and "could have been so occupied on the night of the burglary" such that the school could be considered a dwelling (id., at 316, 659 N.Y.S.2d 466, citing People v. Sheirod, 124 A.D.2d 14, 18, 510 N.Y.S.2d 945). A Judge of this Court granted defendant leave to appeal.

Defendant concedes he committed burglary, but contests the degree. Second degree burglary includes entering a dwelling, while third degree burglary includes only the entry of a building (Penal Law §§ 140.20, 140.25[2] ). A building becomes a dwelling if it is "usually occupied by a person lodging therein at night" (Penal Law § 140.00[3] ). "Where a building consists of two or more units separately secured or occupied, each unit shall be deemed both a separate building in itself and a part of the main building" (Penal Law § 140.00[2] ).

Over 100 years have passed since we last addressed the question of what constitutes a "dwelling" in defining the crime of burglary. In Quinn v. People, 71 N.Y. 561, we held that burglary of a dwelling could be committed by breaking into the first floor office of a building in which the upper floors were occupied residences. In that case we construed the then applicable statutory provision which stated that a building in order to be a dwelling must be "joined to, immediately connected with, and part of a dwelling house." The fact that the first floor commercial space did not have "internal communication" with the upper floor residences was immaterial in light of the statute which strongly suggested that a ground floor commercial space "under the same roof" of a building otherwise used for residences was, in fact, a dwelling (see also, People v. Rohena, 186 A.D.2d 509, 589 N.Y.S.2d 156; People v. Johnson, 162 A.D.2d 267, 556 N.Y.S.2d 870). Wrongful entry into such a building also could have caused the very harm that the increased penalty for burglary of a dwelling was designed to prevent, namely "midnight terror" and the "danger to human life, growing out of the attempt to defend property from depredation" (Quinn v. People, 71 N.Y., at 567).

The facts here present a somewhat different question. In Quinn, there was little doubt that the upper floors were occupied and used for residential purposes. Here, we must determine, under the facts presented, the meaning of "usually occupied by a person lodging therein at night." In most cases, this determination will be a question of fact for the jury based on the particular situation before it (see, e.g., People v. Lewoc, 101 A.D.2d 927, 475 N.Y.S.2d 933 [noting factual issue whether house was dwelling which for a time was left unoccupied] ). As the long history of this issue instructs, there are myriad factual situations in which the question of what constitutes a dwelling can arise (see generally, Annotation, 20 A.L.R.4th 349 [compiling cases regarding burglary and the occupancy of building entered] ).

Nonetheless, here we find that the evidence was legally insufficient to support a finding that the school building was a dwelling within the meaning of Penal Law § 140.00(3). Although prior to 1967, burglary in the second degree required proof of another person's actual presence in the building wrongfully entered (former Penal Law § 403), the statute since that...