New York Law Review

Tag: unlawful entry

  • People v. Lewis, 5 N.Y.3d 546 (2005): Clarifying ‘Intent to Commit a Crime Therein’ for Burglary

    5 N.Y.3d 546 (2005)

    The ‘intent to commit a crime therein’ element of burglary is not satisfied solely by a defendant’s intent to violate an order of protection by entering a dwelling that the order of protection declares off-limits; however, the element is satisfied if the defendant intended to engage in other conduct prohibited by the order while inside the premises.

    Summary

    Defendant was convicted of second-degree burglary. The central issue was whether his intent to violate an order of protection by entering a prohibited dwelling alone satisfied the “intent to commit a crime therein” element of burglary. The Court of Appeals held that it does not, but the evidence was sufficient to prove that the defendant intended to commit another crime beyond the unlawful entry. The court reasoned that unlawful entry alone cannot elevate every order of protection violation to burglary, but other evidence demonstrated intent to harass or menace the complainant within the dwelling. The Appellate Division’s order affirming the conviction was upheld.

    Facts

    The complainant allowed the defendant to live with her despite having him arrested for damaging her property. An order of protection was issued requiring him to stay away from her and her home. The complainant allowed the defendant to return, but after another incident where defendant struck her, another order of protection was issued. Subsequently, the complainant took her keys and left. Defendant entered her apartment without her knowledge while both orders were in effect, seemingly by tampering with a window and fire escape. Upon her return, the defendant kicked her and swore at her as she tried to call the police. Her belongings were scattered outside the apartment.

    Procedural History

    Defendant was charged with second-degree burglary and criminal contempt. At trial, he requested a jury instruction that intent to enter the banned premises alone cannot satisfy the “intent to commit a crime therein” element of burglary. The trial court refused. The jury found him guilty of criminal contempt but was hung on the burglary charge initially. After a supplemental instruction, the jury convicted him of burglary. The Appellate Division affirmed the conviction, and the Court of Appeals granted leave to appeal.

    Issue(s)

    Whether the “intent to commit a crime therein” element of burglary can be satisfied solely by the defendant’s intent to violate an order of protection by entering the dwelling prohibited by the order?

    Holding

    No, because unlawful entry, standing alone, cannot be the predicate crime to satisfy the “intent to commit a crime therein” element of burglary. However, the evidence was sufficient to prove that the defendant intended to commit a crime in the apartment other than the trespass itself.

    Court’s Reasoning

    The court reasoned that if unlawful entry alone sufficed, every violation of a do-not-enter provision in an order of protection would be burglary. However, the Court noted that there was evidence that the defendant intended to commit other crimes within the apartment beyond the unlawful entry, such as harassment, menacing, or intimidation, which were separately prohibited by the order of protection. The court cited People v. Mackey, 49 NY2d 274 (1980), stating that the People need only allege and prove a knowing and unlawful entry coupled with an intent to commit a crime therein. The court emphasized that they do not need to allege or establish what particular crime was intended, citing People v. Mahboubian, 74 NY2d 174 (1989). The Court found there was sufficient evidence for the jury to conclude that the defendant intended to “harass, menace, intimidate, threaten or interfere with complainant in her apartment” in violation of the order of protection. Judge R.S. Smith dissented, arguing that the trial court incorrectly instructed the jury and that the defendant did not forfeit his right to appeal this error.

  • People v. DeFreese, 91 N.Y.2d 714 (1998): Justifiable Use of Deadly Force in Defense Against Burglary

    91 N.Y.2d 714 (1998)

    A person in control of an occupied building may use deadly physical force when they reasonably believe another is committing a burglary and that such force is necessary to prevent or terminate the commission of the burglary.

    Summary

    DeFreese, a store employee, was convicted of criminally negligent homicide after fatally stabbing an unruly customer who had been asked to leave the store but re-entered and became violent. The New York Court of Appeals reversed the Appellate Division’s affirmation of the conviction, holding that the trial court erred in not charging the jury on the justifiable use of deadly force in defense of burglary. The Court reasoned that a reasonable view of the evidence could lead a jury to conclude that the customer’s initial lawful entry became unlawful when he defied the order to leave, and his violent conduct supported the belief that deadly force was necessary.

    Facts

    Troy Alexander, heavily intoxicated, entered a convenience store where DeFreese worked. Alexander bumped into a customer, accosted another, and argued with DeFreese’s brother. Alexander physically threatened DeFreese’s brother. DeFreese escorted Alexander out, but Alexander re-entered, throwing items and threatening to kill DeFreese and his brother. Alexander punched DeFreese, who then grabbed a knife and swung it, fatally striking Alexander in the neck.

    Procedural History

    DeFreese was indicted for second-degree murder and first-degree manslaughter. The trial court instructed the jury on self-defense but declined to instruct on justifiable use of deadly force in defense of burglary. The jury convicted DeFreese of criminally negligent homicide. The Appellate Division affirmed. The Court of Appeals reversed, dismissing the indictment without prejudice to the People’s application to resubmit the criminally negligent homicide charge to a grand jury.

    Issue(s)

    Whether the trial court erred in failing to instruct the jury on the justifiable use of deadly force in defense of burglary, pursuant to Penal Law § 35.20, given the defendant’s claim that he reasonably believed the victim was committing a burglary.

    Holding

    Yes, because a reasonable view of the evidence supported the conclusion that the victim’s initial lawful entry became unlawful when he defied the defendant’s order to leave the premises, and the victim’s violent conduct and threats supported the reasonableness of the defendant’s belief that deadly physical force was necessary to prevent or terminate a burglary.

    Court’s Reasoning

    The Court of Appeals applied Penal Law § 35.20(3), which permits the use of deadly force by a person in control of an occupied building who reasonably believes another is committing a burglary, and reasonably believes such force is necessary to prevent or terminate the commission of the burglary. The court noted that burglary occurs when a person “knowingly enters or remains unlawfully in a building with intent to commit a crime therein” (Penal Law § 140.20). Citing People v. Brown, the Court stated that a licensee’s privilege to be on the premises is revoked when “he defies a lawful order not to enter or remain, personally communicated to him by the owner of such premises or other authorized person” (Penal Law § 140.00 [5]).

    The Court concluded that a jury could reasonably find that Alexander’s entry became unlawful when he defied DeFreese’s order to leave. Further, Alexander’s violent conduct and threats supported the reasonableness of DeFreese’s belief that deadly force was necessary. The Court emphasized it must view the record in the light most favorable to the defendant. The Court cited People v. Padgett, 60 NY2d 142, 144 (1983) and People v. Torre, 42 NY2d 1036, 1037 (1977) for the standard that a reasonable view of the evidence entitles the defendant to a justification charge pursuant to Penal Law § 35.20.

    Because the defendant was convicted of a lesser-included offense, the court dismissed the indictment, allowing the prosecution to seek leave to resubmit the criminally negligent homicide charge to a grand jury.

  • People v. Gaines, 74 N.Y.2d 358 (1989): Burglary Requires Intent to Commit a Crime at the Time of Unlawful Entry

    People v. Gaines, 74 N.Y.2d 358 (1989)

    To be convicted of burglary in New York, a defendant must have intended to commit a crime at the time of unlawfully entering a building; intent formed after the unlawful entry is insufficient to establish burglary.

    Summary

    Gaines was convicted of burglary. The New York Court of Appeals addressed whether the trial court erred by failing to instruct the jury that, for a burglary conviction based on unlawful entry, the intent to commit a crime must exist at the moment of entry. The Court of Appeals held that the intent to commit a crime must exist at the time of unlawful entry. The Court reasoned that burglary is treated as a serious felony due to the heightened danger when someone unlawfully enters a building with criminal intent. The court reversed Gaines’s conviction because the jury instructions could have misled the jury.

    Facts

    Gaines was arrested while exiting a building supply company through a window. He was wearing coveralls and a jacket belonging to a company employee, with company pens in the jacket pocket. Inside, desks were in disarray, but nothing else was missing. Gaines testified that he entered the building to seek shelter from the cold and snow after finding his friend was not home. He claimed he put on the jacket and coveralls to stay warm and denied touching anything else.

    Procedural History

    Gaines was convicted of burglary at trial. He appealed, arguing that the jury instructions were inadequate. The Appellate Division affirmed the conviction. Gaines then appealed to the New York Court of Appeals.

    Issue(s)

    Whether, for a burglary conviction based on unlawful entry, the jury must be instructed that the intent to commit a crime inside the building must exist at the time of the unlawful entry.

    Holding

    Yes, because burglary requires contemporaneous intent to commit a crime at the time of unlawful entry; intent formed after the entry is insufficient.

    Court’s Reasoning

    The Court of Appeals emphasized that burglary is considered a serious felony due to the heightened danger posed by an unlawful intrusion by someone with criminal intent. “A defendant who simply trespasses with no intent to commit a crime inside a building does not possess the more culpable mental state that justifies punishment as a burglar.” The court highlighted that the addition of “remains unlawfully” in the statute was intended to address situations where a person lawfully enters a building but remains after their authorization terminates (e.g., a shoplifter remaining after closing). The Court stated, “[t]he word ‘remain’ in the phrase ‘enter or remain’ is designed to be applicable to cases in which a person enters with ‘license or privilege’ but remains on the premises after termination of such license or privilege.” The court stated that the jury should have been instructed that they must find that he intended to commit a crime at the time he entered the premises unlawfully. Because the instructions given could have misled the jury into thinking that any illegal entry coupled with a subsequent crime constitutes burglary, the conviction was reversed.