Issue before the Court: whether every burglary in a building that contains residential units is a second-degree burglary, even if the building is partly residential and partly commercial, and the unlawful entry occurs wholly in the non-residential part of the building. 

 

 

Held: the unlawful entry into a building with the intent to commit a crime is elevated for a third-degree burglary to a second degree burglary if the building is a dwelling. McCray was convicted of second-degree burglary for his unlawful entry into  a large multi-purpose building on 42nd Street in Manhattan, which contained a Hilton Hotel on upper floors, and a Madame Tussad’s Wax Museum on the lower floors. The Court recognized the continuing validity of the Astor House exception to burglary enhancement, which recognizes that a part of a building where apartments exist may be so “severed” from the commercial premises, that an unlawful entry into the commercial part of the building presents little risk of the types of harm sought to be protected by the second-degree burglary enhancement, and application of that enhancement “does not make sense.” Notwithstanding that exception, the Court found sufficient evidence that defendant had committed second-degree burglaries.

 

CAL Observes: While the Court’s validation of the Astor House exception makes sense, it might be difficult to establish, given the Court’s ruling here. The Court found, as to one of two burglaries here, that the defendant was guilty of second-degree burglary because the jury could have found that defendant entered the Wax Museum by using a stairwell from the hotel. The “ease of access from one place to another is at least equally important” to the proximity of guest rooms to the commercial premises where defendant was encountered, the court found.