People v. Barney, 99 N.Y.2d 369 (2003)

A building retains its character as a ‘dwelling’ for purposes of burglary statutes even shortly after the death of its sole occupant, provided it was usually occupied for lodging, is furnished, and retains the indicia of a residence.

Summary

Barney was convicted of second-degree burglary for entering the home of a man who had died three days prior, intending to steal marijuana. The central issue was whether the house still qualified as a ‘dwelling’ under New York Penal Law. The Court of Appeals affirmed the conviction, holding that the house, which was furnished, had utilities connected, and was recently occupied, retained its character as a dwelling. The Court reasoned that a short period after the occupant’s death doesn’t automatically strip the house of its dwelling status, especially considering the potential harm to grieving relatives and friends.

Facts

The sole occupant of a house died on August 21, 1999. Defendant Barney, aware of the death and that the decedent kept marijuana in the house, entered the unlocked house to search for drugs. Unable to find the drugs, Barney began collecting other items from the house. Police arrived, summoned by a neighbor, and arrested Barney. The utilities were still connected, and the house was furnished. The decedent’s mother owned the house but lived elsewhere and had given a friend of her son a key to care for the property after his death.

Procedural History

Barney was indicted for second-degree burglary and attempted petit larceny. The trial court denied Barney’s request to submit lesser included offenses (third-degree burglary, criminal trespass) to the jury and denied his motion to dismiss the second-degree burglary charge. Barney was convicted of both charges. The Appellate Division affirmed. One of the dissenting Justices at the Appellate Division granted leave to appeal to the Court of Appeals.

Issue(s)

1. Whether there was legally sufficient evidence to prove that the house Barney entered was a ‘dwelling’ within the meaning of Penal Law § 140.25 (2) when its sole occupant had died three days prior to the entry?

2. Whether Barney was entitled to a jury instruction on the lesser included offense of third-degree burglary?

Holding

1. Yes, because viewing the evidence in the light most favorable to the People, a jury could reasonably conclude that the house was ‘usually occupied by a person lodging therein at night’ as required by the statute.

2. No, because there was no reasonable view of the evidence that would support a finding of burglary in the third degree without also finding second-degree burglary; the house was, in fact, a dwelling.

Court’s Reasoning

The Court focused on the statutory definition of ‘dwelling’ as a building ‘usually occupied by a person lodging therein at night’ (Penal Law § 140.00 [3]). The Court emphasized the Legislature’s intent to enact a flexible standard. Considering the surrounding facts and circumstances, the Court noted the house was a furnished residence suitable for habitation and had been occupied until three days before the burglary. Quoting People v. Quattlebaum, 91 N.Y.2d 744 (1998), the court noted the importance of looking to the ‘nature of the structure’ to determine if it was normal and ordinary that it was ‘used as a place for overnight lodging’ and had ‘the customary indicia of a residence and its character or attributes’. The Court distinguished this case from situations involving prolonged absence or abandonment, emphasizing that immediate past use is a relevant factor. The Court rejected a rule that a house automatically loses its dwelling character upon the occupant’s death. The Court stated: ‘The death of its sole occupant three days earlier did not, on its own, transform decedent’s house from a dwelling into a building for the purposes of the burglary statute.’