People v. Watson

• Decision Date: 19 July 1990
• Citation: 558 N.Y.S.2d 537,163 A.D.2d 253
• Parties: , 61 Ed. Law Rep. 1071 The PEOPLE of the State of New York, Respondent, v. Thomas WATSON, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 537

558 N.Y.S.2d 537

163 A.D.2d 253, 61 Ed. Law Rep. 1071

The PEOPLE of the State of New York, Respondent, v. Thomas WATSON, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

July 19, 1990.

J.P. Sullivan, for respondent.

M. Fox, for defendant-appellant.

Before CARRO, J.P., and ROSENBERGER, WALLACH and ASCH, JJ.

MEMORANDUM DECISION.

Judgment of the Supreme Court, New York County (Alvin Schlesinger, J.), rendered March 14, 1989, convicting defendant, after trial by jury, of burglary in the third degree and sentencing him, as a predicate felon, to a prison term of from 2 1/2 to 5 years, is unanimously reversed, on the law, and the indictment dismissed.

Defendant was charged and convicted of third degree burglary upon the theory that he unlawfully entered a building at the Parsons School of Design in Manhattan and stole a wallet containing $13 to $15 from the knapsack of a student, Paula Krauss. There was testimony that the security guard at the school asked defendant if he were a student and defendant said he was. The guard did not ask defendant for identification or to sign in. Complainant Krauss, who had been working on the fourth floor in her "studio"--a movable plywood stall, over which one "can see over the top"--left for a moment to go to the bathroom. When she returned, she noticed defendant in her studio and asked what he was looking for. Defendant told her he was looking for glue. When she discovered her knapsack, which she had placed in her cabinet, was missing, she chased defendant with some other students. The wallet was found on a second floor landing with the money missing. Defendant was observed by the security guard attempting to leave by the 14th Street exit, which was locked, and then, pushing past the guard, he left the school at the 13th Street exit, dropping the money.

Penal Law § 140.20 requires that the People prove as an essential element of third degree burglary that the defendant "enters [and] remains unlawfully" in the premises, and Penal Law

§ 140.00(5) provides, inter alia, that "[a] person 'enters [and] remains unlawfully' in or upon premises when he is not licensed or privileged to do so". The evidence in this case was legally insufficient to establish that defendant had no license or privilege to enter the school and the People, therefore, failed in their burden of proving each and every element of the crime charged (see, People v. Brown, 25 N.Y.2d 374, 377, 306 N.Y.S.2d 449, 254 N.E.2d 755). While this issue is raised for the first time on appeal, legal...