People v. Tragni

• Decision Date: 05 May 1982
• Citation: 449 N.Y.S.2d 923,113 Misc.2d 852
• Parties: The PEOPLE of the State of New York v. Peter TRAGNI, et al., Defendants.
• Court: New York Supreme Court

Page 923

449 N.Y.S.2d 923

113 Misc.2d 852

The PEOPLE of the State of New York v. Peter TRAGNI, et al., Defendants.

Supreme Court, New York County Part 71.

May 5, 1982.

Robert M. Morgenthau, Dist. Atty., New York County, New York City, by Kim Hogrefe, Asst. Dist. Atty., for the People.

David Jacobs, Brooklyn, for defendant Peter Tragni.

Joseph S. Domanti, New York City, for defendant John Barrios.

John Patten, New York City, for defendant Anthony Mazzocchi.

Herbert J. Adlerberg, New York City, for defendant Raheem Thomas.

Jules Sack, New York City, for defendant James Dowtin.

Max Lerner, New York City, for defendant Michael McCarter.

Rachel Wolkenstein, New York City, for defendant Minster Dowtin.

SHELDON S. LEVY, Justice:

Is drilling a hole through an outside wall of a building an entry within the meaning of the burglary statutes, or is it merely evidence of a breaking and an attempt to enter?

No New York court appears to have been confronted with even a similar instrumentality problem in the law of burglary under the revised Penal Law, and this decision, accordingly, is one of first impression.

The seven defendants on trial and two others--colloquially known as "The Gang That Couldn't Drill Straight"--were indicted, inter alia, for crimes of burglary in the third degree (first count) and attempt burglary in the third degree (second count), while acting in concert.

The charge is that, on January 26, 1981, at about 4:30 A.M., the two members of the group, not now on trial, drilled one hole through and one hole partially through the exterior storefront wall of the China Jade Company jewelry store on Canal Street in Manhattan. The holes were apparently purposefully placed on each side of a 3,000 pound safe, located directly within the premises and adjacent to the exterior wall.

Defendants Tragni and Barrios, long-time private garbage truck drivers in the Chinatown area, positioned their respective vehicles in front of the jewelry store and revved their motors in an attempt to shield the activity from public view and to mask the sounds of the drilling operation.

Defendant Mazzocchi acted as lookout, while the four remaining defendants, (all helpers on the garbage trucks, and ultimately acquitted) stood on the sidewalk nearby.

The People theorized that, once the holes were drilled, something would be inserted through the openings and slipped around the safe so that it could be pulled through the wall and removed.

The defendants were aware that the Fifth Precinct station house of the New York City Police Department was around the corner. The defendants were not aware, however, that their activities were being continually monitored by members of that precinct's anti-crime unit, who apprehended all defendants when drilling of the second hole was abruptly terminated (probably because the defendants were alerted by a police radio communication).

At the conclusion of the People's opening statement, all defendants moved to dismiss the burglary count for legal insufficiency. The defendants argued that, since no defendant physically entered the building at any time, there could be no completed burglary. The People responded that at least one drill bit broke through the wall into the air space of the premises and that the entry contemplated by the burglary statutes was accomplished at that point. In the view of this court, neither contention has merit, and the instant determination is a result of that application.

Section 140.20 of the Penal Law, as it applies to this case, reads as follows:

"A person is guilty of burglary in the third degree when he knowingly enters ... unlawfully in a building with intent to commit a crime therein."

The essence of this statute is unlawful and knowing entry with intent to commit some crime in the premises. To find guilt, all elements of a crime must be proven beyond a reasonable doubt, but entry is the active element that surely must be adequately demonstrated.

At common law, an entry was a key component of the crime of burglary. A breaking was another element of the crime, but a relatively insignificant one (see Hechtman, 1975 Practice Commentaries, McKinney's Cons.Laws of N. Y., Book 39, Art. 140, p. 9). Until 1967, however, the statutory law of New York tracked both of these elements (Penal Law 1909, secs. 400, 402-404). Thereafter, the requirement for a breaking was eliminated (Penal Law, secs. 140.20-140.30). Its demise provided no occasion for prolonged lamentation. It had usually created more problems than it solved (see People v. Toland, 217 N.Y. 187, 111 N.E. 760; People v. Viola, 264 App.Div. 38, 34 N.Y.S.2d 1018; People v. Krevoff, 11 A.D.2d 1053, 206 N.Y.S.2d 290).

Nevertheless, when the breaking element for the crime of burglary was removed from the Revised Penal Law, the Legislature deleted not only the definition of the word "break," but also the detailed delineation of the word "enter." The defining of the phrase "enter or remain unlawfully," which was appended to the present Penal Law at that time (section 140.00, subd. 5), was neither a substitute for nor a definition of the entry element of burglary. Instead, it was merely a particularized exposition of the "unlawful" aspect of the crime. Accordingly, there presently remains no direct legislative guidance as to the meaning of the all-important word "enter."

Moreover, no specific legislative history or drafters' commentary reveals the reason for the obviously purposeful and simultaneous elimination of both the breaking and entering definitions, although the entry element is surely elevated in stature under the Penal Law revision.

Previously, the definitional language had carefully, but restrictively, explained that "enter" includes "the entrance of the offender into such building or apartment, or the insertion therein of any part of his body or of any instrument or weapon held in his hand, and used, or intended to be used, to threaten or intimidate the inmates, or to detach or remove property" (Penal Law 1909, sec. 400). In the view of this court, the revisers became fully cognizant of the limiting nature of this language, particularly as it pertained to and seemingly confined the instrumentality rule to potential crimes of larceny (i.e., "any instrument ... used, or intended to be used, ... to detach or remove property" (emphasis added).

Understandably, they were concerned that the retention of such a definition might serve to free, from warranted burglary charges, persons intending, by the use of some instrument, object or weapon, such crimes as murder, assault and arson. Furthermore, the drafters must have been equally anxious about the prospect of evolving statutory language broad enough both to prevent technical escapes from legislative intendment and to encompass within a single, comprehensible definition the myriad means of entry, presently limited only by the bounds of scientific advancement and human imagination.

Accordingly, the revisers opted for a total elimination of any--in their view--restrictive definition of the element of entry. However, if their actual aim in this regard was to permit the courts to fashion the meaning of entry on a case by case basis, then they were plainly misguided. Such a lack of predictability in a criminal statute can present a marked impediment to the prosecution in both evidence gathering and presentation and to the defense in attempting to guard against unknown or unanticipated proofs. The true balance of justice would be sadly lacking were the Legislature to relegate its duties to the courts.

Instead, it must be assumed that the drafters had no such unseemly motive and that what they really envisioned was an adoption by the courts of common law, common usage and common sense definitions of both bodily and instrumental entry.

However, no persuasive support appears for a claim that the legislative deletion of the prior entry explanation signalled any such radical departures from previously accepted definitional standards as either the defendants or the People suggest.

It is true that our State's highest court has twice indicated that a defendant was correctly charged only with attempted burglary rather than with the completed crime where he did not physically gain entrance to the premises involved (see People v. Gilligan, 42 N.Y.2d 969, 398 N.Y.S.2d 269, 367 N.E.2d 867; People v. Henderson, 41 N.Y.2d 233, 236, 391 N.Y.S.2d 563, 359 N.E.2d 1357; see also People v. Campbell, 54 A.D.2d 777, 387 N.Y.S.2d 304).

It seems clear, however, that the statements contained in these cases were meant to pertain to and comment upon only the factual patterns evidenced therein. Such...