Friday, October 26, 2012

Jill Paperno,  Second Assistant Monroe County Public Defender
and Brian Shiffrin

The Monroe County District Attorney usually indicts burglaries using the language that the defendant "entered or remained" unlawfully in the building or dwelling.  Yet in 1989, in People v Gaines (74 NY2d 358 [1989]), a case prosecuted by the Monroe County District Attorney, the Court of Appeals held that entering burglaries are actually quite distinct from remaining burglaries and that one cannot simultaneously engage in both.

An entering burglary is committed when one knowingly enters unlawfully, with the intent to commit a crime inside. A remaining burglary is the type of burglary in which someone may enter when they had license or privilege to do so, but remains past that time unlawfully for the purpose of committing a crime. That doesn't mean staying too long at the party, when the hosts want to go to sleep.  It means, as an example, staying without permission in a store after the store has closed in order to commit a crime. As stated in Gaines, “[i]n order to be guilty of burglary for unlawful remaining, a defendant must have entered legally, but remain for the purpose of committing a crime after authorization to be on the premises terminates. And in order to be guilty of burglary for unlawful entry, a defendant must have had the intent to commit a crime at the time of entry. In either event, contemporaneous  intent is required.”  People v Gaines, 74 NY2d 358, 363 (1989).

In Gaines, the Court held that it was reversible error for the trial court to “have referred to unlawful remaining in its burglary charge, since the situation to which that language applies was not present in the case." Id. at 363. Thus, as the trial attorney did in Gaines,  in cases in which there is no proof of lawful entry, counsel  must request that the jury strike the "or remaining" language from the description if your client's charge and from from both the jury instruction on burglary and, if a lesser of criminal trespass is being charged, from the lesser, too.  Indeed, one wonders how a properly charged grand jury can charge, based on the same conduct,  that the defendant entered illegally to commit a crime and that at the same time he entered lawfully, but remained after his license to be in the building expired, for the purpose of committing a crime.

The Court in Gaines also held that "[m]ost importantly, defendant was entitled to a charge clearly stating that the jury must find that he intended to commit a crime at the time he entered the premises unlawfully.” Id. at 363. Thus, counsel must makes sure that the jury is so instructed.

Since Gaines is the decision in which the Court of Appeals explains what constitutes burglary and what distinguishes burglary from mere commission of trespass and a crime, it is essential that an attorney defending a burglary case read and be familiar with the various parts of the holding in Gaines. (In Gaines the defense was that there was a trespass and a larceny and not a burglary, since the intent to commit larceny was formed after the unlawful entry.)

Another issue that arises in burglaries is the confusing state of the law with respect to what crime is intended at entry or unlawful remaining. The law simply requires that a defendant have the intent to commit any crime inside the building.  Often, defense counsel serve a request for bill of particulars seeking...well...particulars, about the offense, including what crime the defendant allegedly intended to commit.  Prosecutors respond that they don't have to specify.  And strangely, they're right. “(T)o secure a conviction for burglary the State 'need not establish what particular crime the intruder intended to commit’ (cite omitted), nor is it necessary that the intended crime in fact be committed (cite omitted).” People v Mackey, 49 NY2d 274, 279 (1980). (However, the Court of Appeals has also held that if the indictment does specify which crime the defendant intended to commit, the People must prove that crime, not a different one. People v Barnes, 50 NY2d 375, 379, n.3 [1980]).

But if, as is typically the case, a prosecutor does not specify the intended crime, there are problems that arise at the time the jury gets charged.  The jury is instructed that in order to convict they must find proof beyond a reasonable doubt that the defendant intended to commit a crime inside the building.  But if the crime is not specified, what exactly is the jury going to think?  How do the jurors know what is merely obnoxious behavior, what is a violation, and what is a crime (which is defined as a felony or misdemeanor in the Penal Law)?

If the prosecutor has not specified, then defense counsel should consider submitting an instruction for the judge to read to the jury.  One that Jill drafted recently, in a case involving a physical confrontation in a dwelling, is set forth below. The prosecutor argued that a problem with this  instruction is that the word crime includes felonies and misdemeanors, but the words “felony” and “misdemeanor” are defined by the potential sentence one can receive. And a jury is not supposed to consider sentencing. But how else can the judge properly define what constitutes a “crime” when none is specified and the jury needs to know that certain conduct does not constitute a crime? Although the judge to whom this proposed charge was submitted did not read the entire instruction, the judge did note that our Penal Law contains three types of offenses - violations, misdemeanors and felonies.  And the judge noted that violations are not crimes.
But what if the jury had asked about whether particular conduct was a crime or violation?  Or whether they could hear a list of crimes that might have applied?  There is a serious problem with this statute and the state of the law as it stands now.  Perhaps defense counsel need to start more vigorously objecting to the refusal to specify the underlying charge, pointing out to the court the possible problems with jurors being left to speculate what constitutes the crime that may have occurred when no crime is specified.

Defense counsel also needs to be very familiar with the states of mind - that's right, plural - required for conviction in a burglary case.  Although we often refer to the entry (or remaining) in burglary as being unlawful entry, it's actually knowing unlawful entry (or remaining).  So not only does the prosecutor have to prove beyond a reasonable doubt the entry was unlawful, but also that your client knew at the time it was unlawful.  In the New York Criminal Jury Instructions Charges of General Applicability, there is a charge on what "knowing" means.  Consider requesting it to emphasize the importance of that element.

The other requisite state of mind is intent to commit a crime inside, as discussed above.  So there's an awful lot of stuff about what was on your client's mind at the time of entry or remaining that must be proven.  This is often the basis of a defense.  If you have an argument that there is reasonable doubt on the intent to commit a crime on a burglary in the second degree, you may wish to ask for the lesser included misdemeanor of criminal trespass in the second degree.  But be aware - the lesser of a burglary third is not criminal trespass in the second degree or criminal trespass in the third degree, since those statutes have additional elements, and you might be able to commit the higher offense without committing the lesser.

Another thing to keep in mind is the language of the indictment.  In the case just tried, the indictment specified both the address of the building and the apartment within it. In other words, the entering and knowingly remaining unlawfully charge related to a particular apartment.  The judge read the instructions, initially inadvertently leaving out the apartment number. So the jury could have concluded that upon entry to the building with the intent to commit a crime inside, the burglary had been completed. But in this case, there were intervening circumstances that affected the defendant's state of mind inside. So it was very important that the jury focus on what happened at the threshold to the apartment - not the entrance to the building. The judge quickly corrected the charge once this was pointed out. But it's yet another lesson in why it is so important not to take that well deserved and desperately needed nap during the jury charge.

The charge of burglary in the second degree has two subdivisions. The first relates to knowingly unlawfully entering or remaining in a building with the requisite intent either armed with one of several specified weapons or causing injury.  The second subdivision relates to entry into a building when the building is a dwelling.  Penal Law § 140.00(3) defines a “dwelling”as “a building which is usually occupied by a person lodging therein at night.” What constitutes a dwelling under this provision is an issue that is often litigated in these cases.  Unoccupied dorm rooms during the summer break?  Homes where occupants are vacationing?  Motel rooms?  Hallways of apartments?  Vacant homes?  The following three Court of Appeals cases discussing and deciding what constitutes a dwelling need to be reviewed if the issue of whether a building is a dwelling is going to be raised at trial:  People v Barney, 99 NY2d 367 (2003) (evidence that house defendant entered at night was a “dwelling” was sufficient to support conviction of burglary in the second degree, where house was fully furnished with working utilities, it could have been occupied overnight, and it ordinarily was occupied by resident who had died three days earlier); People v Sheirod, 124 AD2d 14 (4th Dept.1987) (house remained a dwelling even thought the inhabitants had been absent for more than a year];  People v Quattlebaum, 91 NY2d 744 (1998) (school building with an office on the fifth floor containing a bed that was sometimes used for overnight stays was not a dwelling). 

Make sure you investigate your case and do the legal research when handling a case in which the alleged dwelling might not be one. Burglary in the third degree is simply knowing unlawful entry or remaining in a building with the requisite intent.  If one of the issues in your case is whether the building was a dwelling, you might be asking the court to charge burglary third as a lesser included offense. The difference is sentences that can be imposed on burglary in the second degree, a class C violent felony offense, and  those available for burglary in the third degree, a class D non- violent felony offense, is a big one.

Another issue you may encounter in handling burglary cases is whether a partial entry into a building is enough to constitute a burglary, rather than an attempt. 

Finally, in a case decided this week, the Court of Appeals decided that entry for the purpose of engaging in otherwise legal conduct made illegal solely because it is prohibited by an order of protection can be the basis for the intent element.  See,  People v Cajigas, __ NY3d __, 2012 WL 5131395, 2012 NY Slip Op 07049 [10/23/12].  Thus, one fact - the existence of an order of protection - may satisfy the knowing unlawful entry as well as the intent elements.  However, the mere entry into a building  at the time an order of protection is effect cannot be the basis for the intent element. See,  People v Lewis, 5 NY3d 546 (2005) ("Unlawful entry cannot itself be used as the sole predicate crime in the "intent to commit a crime therein" element of burglary. If it could, every violation of a do-not-enter provision of an order of protection would become a burglary the instant defendant knowingly entered upon the banned premises"). In other words, it appears that a burglary charge should not be based solely on the double counting of the order of protection - unlawful entry based on the order, and intent to commit a crime based on a claim that the intent was to violate the order.


I have read you my instruction defining burglary in the second degree.  I will now turn to the meaning of the word crime.

 As I have instructed you, in order for you to find the defendant guilty you must conclude beyond a reasonable doubt that the defendant unlawfully entered a dwelling and that at the time of such unlawful entry he intended to commit a crime therein.

 Not all conduct which is offensive or annoying constitutes a crime.  Thus, a person may engage in an argument or other behavior that may be offensive, but not necessarily be guilty of committing a crime.

 According to our Penal Law, the word crime is defined as a misdemeanor or felony Penal Law Section 10.00(6).  A misdemeanor is “an offense, other than a ‘traffic infraction,’ for which a sentence to a term of imprisonment in excess of fifteen days may be be imposed.” Penal Law Section 10.00(4)  A felony is “an offense for which a sentence to a term of imprisonment in excess of one year may be imposed.” Penal Law Section 10.00(5)

Our law also recognizes a third level of offenses, not classified as crimes, which are called violations. A violation is “an offense, other than a ‘traffic infraction,’ for which a sentence to a term of imprisonment in excess of fifteen days cannot be imposed.” Penal Law Section 10.00(3)

 Harassment in the Second Degree is a violation.  The definition of harassment in the second degree is as follows:
A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person: (1) He or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same; or (2) He or she follows a person in or about a public place or places; or (3) He or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.” Penal Law section 240.26

Thus, if you conclude that the prosecution has proven beyond a reasonable doubt that the defendant entered the apartment unlawfully, and that at the time he entered unlawfully he intended to commit therein a crime as defined by our penal law, you must find him guilty of burglary in the second degree.  If, on the other hand, you conclude that the prosecution has failed to prove beyond a reasonable doubt that the defendant entered the dwelling unlawfully, or that the prosecution has failed to prove beyond a reasonable doubt that at the time of such entry the defendant intended to commit a crime therein as defined by our Penal Law, you must find the defendant not guilty of Burglary in the Second Degree.

Disclosure: Brian argued Gaines on a brief written by Howard Broder and argued Sheirod on a brief written by Janet Somes.

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