52 N.Y.2d 952 (1981)

In a burglary trial, where the court instructs the jury that the defendant must have entered the premises with the intent to commit a crime, the court’s refusal to specify that the intended crime must be a felony or misdemeanor is not reversible error, absent a specific request to charge that trespass cannot be the underlying intended crime.

Summary

John Borrello and Efrain Arroyo were convicted of third-degree burglary. On appeal, they argued that the trial court erred by not specifying to the jury that the crime they intended to commit upon entering the premises had to be a felony or misdemeanor, and by failing to instruct that the lesser included offense of trespass could not be the underlying intended crime for burglary. The Court of Appeals affirmed, holding that because the trial court charged the jury that the defendants needed to have intent to commit a crime when entering the building, its refusal to further specify the nature of the crime was not reversible error. The court also held that the defendants failed to preserve the argument regarding trespass for appellate review because they did not specifically request such a charge.

Facts

The defendants, John Borrello and Efrain Arroyo, were tried and convicted of burglary in the third degree. During the trial, the court instructed the jury that to convict the defendants, they had to find that the defendants entered the premises with the intent to commit a crime. The defendants requested the court specify that the intended crime must be a felony or a misdemeanor, a request which the court denied.

Procedural History

The defendants were convicted of burglary in the third degree in the trial court. They appealed to the Appellate Division, which affirmed their convictions. The defendants then appealed to the New York Court of Appeals.

Issue(s)

1. Whether the trial court committed reversible error by refusing the defendants’ request to specify that the intended crime for burglary had to be a felony or misdemeanor, given that the court instructed the jury that the defendants needed to have intent to commit a crime when entering the building?

2. Whether the trial court erred by not instructing the jury that trespass could not be the underlying intended crime for burglary?

Holding

1. No, because the trial court charged the jury that the defendants needed to have intent to commit a crime when entering the building, its refusal to further specify the nature of the crime was not reversible error.

2. No, because the defendants failed to preserve the argument regarding trespass for appellate review by not specifically requesting such a charge.

Court’s Reasoning

The Court of Appeals reasoned that the trial court’s instruction that the defendants had to enter the premises with the intent to commit a crime was sufficient. The court noted that the defendants’ request for further specification was refused, but this refusal did not constitute reversible error in light of the initial charge. The court emphasized that the core element of burglary is the intent to commit a crime within the premises.

Regarding the issue of trespass as the underlying intended crime, the court found that the defendants failed to properly preserve this argument for appellate review. Although defense counsel alluded to the point during a colloquy with the trial judge after the charge, he never formally requested a specific instruction that trespass could not be the underlying crime. Because the defense did not make a clear and explicit request for this specific charge, the Court of Appeals declined to consider the argument on appeal. The court thus applied the general rule that a party must make their position known to the trial court to preserve an issue for appellate review.

The court does not provide specific quotes, but the holding relies on established principles of criminal law regarding the elements of burglary and the preservation of legal arguments for appeal.