People v. Sheirod

• Decision Date: 23 January 1987
• Citation: 510 N.Y.S.2d 945,124 A.D.2d 14
• Parties: PEOPLE of the State of New York, Respondent, v. Lee SHEIROD, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 945

510 N.Y.S.2d 945

124 A.D.2d 14

PEOPLE of the State of New York, Respondent, v. Lee SHEIROD, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

Jan. 23, 1987.

Edward J. Nowak, Rochester, (Brian Shiffrin, of counsel), for appellant.

Howard R. Relin, Rochester (Elizabeth Clifford, of counsel), for respondent.

Before CALLAHAN, J.P., and DENMAN, BOOMER, GREEN and BALIO, JJ.

BALIO, Justice.

In June of 1982, Stephen Hassall and his family moved from Chili, New York, to Colorado where Hassall began a one-year assignment for his employer, Eastman Kodak. The Chili residence was left completely furnished, and the utilities remained operable. Neighbors were hired to check the house daily for break-ins or weather damage.

A year later on June 20, 1983 at about 9:15 a.m., the alarm system at the Hassall residence alerted a neighbor, Rita Harper, of an intrusion. Harper and another neighbor, John Basile, drove to the Hassall residence where they observed a car in the driveway and made a written note of the license plate number. Basile then observed a man walk some twenty feet from the side of the house to the car and drive off. Basile followed the car for a while and then returned to the residence.

Upon investigation, it was determined that the garage and kitchen doors were forced open; that several boxes of personal belongings, which had been shipped from Colorado and stored in the garage, were ripped open; and that dresser drawers and jewelry boxes in a bedroom were opened. Apparently, nothing was taken.

A check on the license plate number revealed that the car observed by the neighbors was registered to defendant. Later that same day, an investigator with the Sheriff's Department prepared an array of six photographs which was shown to Basile. Basile identified defendant as the person he had seen at the Hassall residence. Two days later, a parole officer interviewed Basile and showed him two photo arrays, one prepared from Sheriff's Department photographs and one from Division of Parole photos. Basile immediately identified the defendant in both arrays.

Following a suppression hearing, the court found that each array and the procedures employed at each identification were not suggestive. Although it considered showing three arrays somewhat suggestive, the court concluded that use of the multiple arrays was insufficient to warrant suppression. Defendant was subsequently convicted by jury verdict of burglary second degree, attempted petit larceny, and criminal mischief fourth degree.

On appeal, defendant first contends that the trial court erred by refusing to charge burglary third degree and criminal trespass third degree as lesser included offenses of burglary second degree. We disagree. To warrant a lesser included offense charge, there must be a view of the evidence, considered most favorably to the defendant (People v. Shuman, 37 N.Y.2d 302, 304, 372 N.Y.S.2d 60, 333 N.E.2d 363), that would support a finding that he committed the lesser offense but not the greater (People v. Glover, 57 N.Y.2d 61, 63, 453 N.Y.S.2d 660, 439 N.E.2d 376).

Under the circumstances of this case, conviction for burglary second degree required proof that the residence was a dwelling (Penal Law, § 140.25[2] ), defined as "a building which is usually occupied by a person lodging therein at night" (Penal Law, § 140.00[3] ). Conviction for the lesser included offenses would have required merely proof that the residence was a building. Defendant suggests that since the Hassall residence had not been occupied for about a year, there was a reasonable view of the evidence indicating that the residence was a building, but not a dwelling, and warranted submission of the lesser included offenses to the jury.

Prior to 1967, proof of actual presence by a human being was an essential element of burglary second degree (Penal Law, § 403). Under the Revised Penal Law, actual presence is not required, and the "usually occupied" element may be satisfied even though the residence is temporarily unoccupied at the time of the burglary (see, People v. Lewoc, 101 A.D.2d 927, 475 N.Y.S.2d 933). The issue presented here is whether absence for a year may be considered temporary. We conclude that it may and that the jury, properly instructed on the statutory definition of a dwelling, correctly determined that it was.

In Lewoc, although the issue had not been preserved for appellate review, the court noted that a two and one-half month sojourn to Florida raised a factual issue as to temporary absence which the jury resolved in favor of the People. Courts in other jurisdictions that do not require actual physical presence at the time of the burglary have concluded that absences ranging from one month to two years may be considered temporary (see, for example, Bazroux v. State, 634 S.W.2d 919 [Tex.Ct.App.] [28-day business trip]; Middleton v. State, 181 Ind.App. 232, 391 N.E.2d 657 [5-month vacation]; and Hamilton v. State, 354 So.2d 27 [Ala.Cr.App.], cert. denied 354 So.2d 30 [two years] ).

Analysis of the various authorities suggests that the following factors are relevant in considering whether absence is merely temporary: (1) the nature of the structure, i.e., its adaptation at the time of the burglary to occupancy by a person (see, e.g., State v. Albert, 426 A.2d 1370 [Me.] ), where summer camp burglarized in January was considered a dwelling because it was adapted for overnight accommodation. But see, State v. Eaton, 43 Or.App. 469, 602 P.2d 1159; State v. Celli, 263 N.W.2d 145 [S.D.]; Smart v. State, 244 Ind. 69, 190 N.E.2d 650 and White v. State, 166 Tex.Cr.R. 267, 312 S.W.2d 639, where seasonal homes either unfurnished or without utilities were found not to constitute dwellings); (2) the intent of the owner to return (People v. Traylor, 100 Mich.App. 248, 298 N.W.2d 719; State v. Lisiewski, 20 Ohio St.2d 20, 252 N.E.2d 168); and (3) whether, on the date of the burglary, a person could have occupied the structure overnight (State v. Lisiewski, supra ). If there was an intent to return, the length of absence is generally considered irrelevant (People v. Traylor, supra; Hamilton v. State, 354 So.2d 27, supra. cf. Starnes v. Commonwealth, 597 S.W.2d 614 [Ky.]; 20 A.L.R.4th 349).

A consideration of these factors clearly supports a finding of temporary absence. The structure had been used as the family residence for some 12 to 13 years. It was structurally adapted for overnight accommodation and could have been so occupied on the day of the burglary. It...