Tag: Penal Law

0 comments

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]).   more

0 comments

In New York, you can be charged with a crime for some rather innocuous behavior, including rioting. Hire a good criminal defense attorney – that is no April Fools Joke. The Defendant here was accused of just that, rioting, “being involved in a fight where he and at least four other individuals struck each other with closed fists.” The Court’s job here was to evaluate the criminal charges to see if they were legally sufficient.

The charges filed indicate that there was a fight, a brawl… Perhaps even, a riot. In this “melee” a chair was thrown and people were thrown all about. As a result, the Defendant is charged with Riot in the Second Degree (PL §240.05) and Disorderly Conduct (PL §240.20[5]).

Penal Law §240.05 provides that “[a] person is guilty of riot in the second degree when, simultaneously with four or more other person, he engages in tumultuous and violent conduct and thereby intentionally or recklessly causes or creates a grave risk of public alarm.” “The phrase ‘tumultuous and violent conduct’…means much more than mere loud noise or ordinary disturbance. ‘It is designed to connote frightening mob behavior involving ominous threats of injury, stone throwing or other such terrorizing acts.'” People v. Morales, 158 Misc.2d 443 (Crim Ct, NY County 1993), quoting Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law §240.05, at 210.

 more

0 comments

The Defendant here is charged with Criminal Trespass in the Second Degree (PL §140.15[1]), Criminal Trespass in the Third Degree (PL §140.10[a]), and Trespass (PL §140.05). Defendant moved pursuant to CPL §§ 170.30(1)(e) and 30.30 to dismiss the accusatory instrument on speedy trial grounds.

The case delineates the procedural history very carefully:

  • On May 14, 2015, defendant was arraigned on a misdemeanor complaint and the case was adjourned to July 6, 2015 to join. The People stated that they were ready as to all counts.
  • On July 6, 2015, the case was adjourned to August 17, 2015 for motion practice. This court directed defendant to file his motions on or before July 27, 2015.
  • On August 17, 2015, defendant filed a motion to dismiss on the grounds of facial insufficiency. The case was thereafter adjourned to November 10, 2015 for response and decision. In their papers in opposition filed on September 29, 2015, the People conceded that the accusatory instrument was facially insufficient. The People also submitted as an exhibit to their affirmation in opposition a copy of a superseding information which purportedly cured all of the defects in the original accusatory instrument. Pp. 1 (external quotation marks omitted)

The Court, somehow unaware of the speedy trial motion to dismiss, dismissed the misdemeanor informations on the basis of facial insufficiency. The People refiled the charges and the defendant moves to dismiss, again, on speedy trial grounds. The People contest the instant motion on the grounds that no time has run against the People because the People filed new charges. more