Decided On : 8/3/2017
People v Joseph
Issue before the Court: Does a defendant burglarize a “dwelling” when he breaks into the basement of a building with a bodega on the ground floor and six floors of residential apartments above? Defendant was observed on the bodega’s surveillance entering the basement through the cellar door located on the sidewalk. The basement had no other access and served as a storage area for the bodega. Defendant was arrested when the bodega employee locked the cellar door, trapping the defendant, and called the cops.
Held: Not a burglary of a dwelling, at least in this circumstance. In 2014, the COA revived a long-dormant exception to the rule that a “dwelling” is a building some portion of which is usually occupied by someone sleeping there at night. That exception exists where the building is “large” and the burglary occurs in an area “remote and inaccessible from the living quarters.” People v. McCray, 23 N.Y.3d 621, 625 (2014) (quoting Quinn v. People, 71 N.Y. 561 (1878)). In those circumstances, “the burglar neither comes nor readily can come near to anyone’s living quarters,” and thus the enhanced penalty for burglarizing a dwelling does not apply. Id. at 628.
Here, although the area burglarized was remote (the basement was wholly inaccessible to the residents and not connected with the area of the building where people resided), the building could not be considered large. The Court weighed whether both prongs of the test needed to exist for the McCray exception to apply. Finding that “the size of the building may be a factor” but was not “a requirement” under McCray, the Court, in a memorandum opinion, held that the defendant could not be convicted of burglarizing a dwelling. Judge Stein, in a 10-page dissent, disagreed.
CAL Observes: Good facts make good law. The petty thief endangered no person in their home by going in the bodega’s basement and thus the case presented none of the dangers that the enhanced penalty for burglarizing a dwelling was meant to address. Under Quinn though, the defense had an uphill battle because the Court had affirmed a conviction where a shop underneath and not connected to the residences above had been burglarized. Under McCray, the defense failed the “large” building aspect of the test. Yet, the defense prevailed even with the current pro-prosecution Court. No longer a bright line rule, there is room for arguing against a finding of a dwelling with the right facts.
A curiosity of the case is the Court’s use of a memorandum decision. The majority wrote seven pages and the dissent wrote ten additional pages. That would not seem like the kind of dispute to be resolved in a memorandum.
AD1 order dated January 13, 2015, affirming judgment of conviction with two dissents. Decision below: 124 A.D.3d 437, 1 NYS 3d 63. Manzanet-Daniels, J. (AD dissenter), granted leave April 21, 2015.
ISSUE PRESENTED: Whether the basement of a deli, inaccessible to the residential apartments in a building, was a “dwelling” under the burglary statute. (Assigned counsel: Richard M. Greenberg, Office of the Appellate Defender, 11 Park Place, Suite 1601, NYC 10007.)
People v Joseph