People v. Thompson
Decision Date | 21 April 1986 |
Citation | 116 A.D.2d 377,501 N.Y.S.2d 381 |
Parties | The PEOPLE, etc., Respondent, v. Robert THOMPSON, Appellant. |
Court | New York Supreme Court — Appellate Division |
Abraham Werfel, Great Neck, for appellant.
John J. Santucci, Dist. Atty., Kew Gardens (Emil Bricker, of counsel), for respondent.
Before MANGANO, J.P., and NIEHOFF, RUBIN and KUNZEMAN, JJ.
MANGANO, Justice Presiding.
A defendant may be found guilty of the crimes of burglary in the second and third degrees when he, inter alia, "knowingly enters or remains unlawfully in a building" (see, Penal Law §§ 140.25, 140.20), or, in the case of burglary in the first degree, when he, inter alia, "knowingly enters or remains unlawfully in a dwelling" (see, Penal Law § 140.30). The phrase "enters or remain unlawfully" is defined in the Penal Law as follows (Penal Law § 140.00[5] ):
"A person, 'enters or remains unlawfully' in or upon premises when he is not licensed or privileged to do so".
The primary question to be resolved on the instant appeal is whether this defendant may be convicted of burglary in the second degree, when his entry into the complainant's apartment was accomplished through trick or misrepresentation.
In our view, the question must be answered in the affirmative.
The female complainant, who was 77 years of age on the date of the incident, lived with her 85-year-old, blind husband in an apartment building in Rochdale Village, Queens. On June 15, 1980, the couple was robbed in the elevator of their apartment building, while riding up to their 8th floor apartment. Subsequently, in an unrelated incident, the couple's apartment was burglarized. Both incidents were reported by the woman to the management of the building.
On August 15, 1980, at approximately 2:00 P.M., the woman responded to the ringing of her doorbell. The man who appeared at her door announced that he was "representing the Senior Citizens". He also stated that he was aware of the prior criminal acts to which the elderly couple had been subjected, and had been sent to their apartment to help. The woman invited the man in after he flashed a white and silver badge. The woman introduced the visitor, who identified himself as "Steve McBride", to her husband, and, on this occasion, he spoke to the couple for two hours. The man, whom the woman identified in court as the defendant, promised her that he "would take care of everything" and told her that his organization's lawyers would represent the couple in court.
On August 21, 1980, the defendant telephoned the woman and informed her that "management" wished to enter into a settlement whereby the couple would be compensated for their loss in the amount of $350, in return for the couple's execution of a release.
On August 22, 1980, the woman returned to her apartment at approximately 3:00 P.M. after attending a funeral. About 10 minutes later, the defendant rang the doorbell and flashed his badge. The woman again invited the defendant into her apartment and conferred with him for approximately one half hour. The woman proceeded into the kitchen in order to execute the release. The defendant followed her, and, upon placing a knife at her throat, demanded that the woman give him her money and valuables. The defendant then escorted the couple to their bedroom, ransacked a chest of drawers, and took a $5 bill and the woman's solid gold watch. The defendant, who, by his own admission, was a hairdresser, was subsequently apprehended and convicted of several crimes, including burglary in the second degree.
Section 400(3) of the former Penal Law of 1909 defined the term "break", which was contained in the provisions dealing with the crime of burglary (see, former Penal Law §§ 402, 403, 404), as follows:
"Obtaining an entrance into such a building or apartment, by any * * * artifice used for that purpose".
The present Penal Law (see, Penal Law § 140.00[5] ) provides that a person may be convicted of the crime of burglary when he, inter alia, " 'enters or remains unlawfully' in or upon premises when he is not licensed * * * to do so".
The defendant argues that since the Legislature omitted the word "artifice" in the present Penal Law, its intent was to provide that a license or privilege to be in a particular premises was not vitiated if it was obtained through trick or misrepresentation.
We cannot agree with such an interpretation of the statute. Indeed, the incongruity of the defendant's argument 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., Book 39, Penal Law § 140.00[5], p. 15). As was noted in People v. Hutchinson, supra, at pp. 488-490, 477 N.Y.S.2d 965):
We agree with these authorities, and, accordingly, the defendant's argument concerning the validity of his conviction for the crime of burglary in the second degree must be rejected.
The defendant also argues on his appeal that the branch of his omnibus motion which was to dismiss the indictment should have been granted by Criminal Term on the ground that the prosecutor failed to advise the members of the Grand Jury that the defendant's prior criminal record--adduced during cross-examination of the defendant before the Grand Jury--was to be considered solely on the issue of his credibility and could not be viewed as an indication of his propensity toward criminal behavior.
We disagree with the defendant's argument.
It is true that pursuant to CPL 190.30 former (6), now (7), the...
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