Because the Residential Area of the Building could not be accessed from where he entered, Defendant’s Burglary Conviction cannot Stand


In People v. Joseph, the Court of Appeals holds that Defendant’s Burglary Conviction cannot Stand because the Residential Area of the Building could not be accessed from where he entered.

The Defendant was charged “with one count each of burglary in the second degree (Penal Law § 140.25 [2]), burglary in the third degree (Penal Law § 140.20), resisting arrest (Penal Law § 205.30) and attempted escape in the second degree (Penal Law §§ 110; 205.10 [2]).” Here, the Court of Appeals grapples with whether the Defendant actually committed a burglary as defined by the Penal Law.

The facts are recited by the Court as follows:

On the evening of June 28, 2010, defendant entered the basement of the Greenleaf Deli in Manhattan. The deli was located on the ground floor of a seven-story building, with six floors of residential apartments above it. The basement, which was only accessible through two cellar doors located on the public sidewalk adjacent to the deli, was used to store deli merchandise. There was no access from the basement to any part of the residential units of the building, or to the deli itself. The apartment residents did not have access to the basement and only deli employees were permitted to enter the basement. An employee observed defendant on the deli’s surveillance monitor enter the open doors to the deli basement and walk around the basement with a flashlight. The employee went outside, closed and locked the basement doors and called 911. The police arrived, asked defendant to climb out of the basement, and, after a struggle, arrested him.

The argument put forward, before and during trial, by his defense attorney was that the deli basement was not a dwelling as the law defined it. Indeed, longstanding law holds that “if a building contains a dwelling, a burglary committed in any part of that building is the burglary of a dwelling; but an exception exists where the building is large and the crime is committed in a place so remote and inaccessible from the living quarters that the special dangers inherent in the burglary of a dwelling do not exist.” People v McCray (23 NY3d 621, 625 [2014]).  

Burglary in the third degree is committed when a person “knowingly enters or remains unlawfully in a building with intent to commit a crime therein” (Penal Law § 140.20). Penal Law § 140.25 (2) elevates third degree burglary to second degree burglary when “[t]he building is a dwelling.” A dwelling is “a building which is usually occupied by a person lodging therein at night” (Penal Law § 140.00 [3]). “Where a building consists of two or more units separately secured or occupied, each unit shall be deemed both a separate building in itself and a part of the main building” (Penal Law § 140.00 [2]). This Court explained in People v Quattlebaum (91 NY2d 744 [1998]), that the increased penalty for burglary of a dwelling was designed to prevent “midnight terror” and the “danger to human life, growing out of the attempt to defend property from depredation” (91 NY2d at 747, quoting Quinn). Of note, in 1981, the legislature eliminated any nighttime element for burglary of a dwelling (L 1981, ch 361). In McCray, this Court pointed out that “a burglary of a dwelling is a more serious crime than other burglaries [because] an intrusion into a home or an overnight lodging, is both more frightening and more likely to end in violence” (id. at 627). “[T]hese dangers are created in significant degree when the crime is committed ‘in close contiguity’ with a ‘place of repose’ even though the place of the burglary and the sleeping quarters are not instantly accessible to each other” (id. at 627, quoting Quinn). But this Court observed in McCray that the legislature had not authorized “a conviction for burglary of a dwelling where the burglar neither comes nor readily can come near to anyone’s living quarters” (McCray at 628). In this case, given the isolation of the basement itself from the rest of the building, as well as the noncontiguous relationship of the basement to the residential units of the building, defendant did not come, nor could he have readily come near to the residences.

In concluding the evidence was legally insufficient to uphold Defendant’s conviction, the Court of Appeals noted that  “the deli basement was both inaccessible to, and remote from, the residential apartments. It was inaccessible because defendant could not go anywhere into the building from the basement. He could not reach the deli or the apartments. All that he could reach from the basement was the public sidewalk.”

Conclusion: In sum, there was no “close contiguity” (Quinn at 567) between the basement and the dwellings. Under these facts, “the special dangers inherent in the burglary of a dwelling do not exist” (McCray at 624).

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