AD1 order dated March 17, 2011, affirming judgment of conviction. Decision below: 82 AD3d 544, 918 NYS2d 463. Smith, J., granted leave August 3, 2011.

ISSUE PRESENTED: Under People v. Lewis (5 NY3d 546), when an order of protection is in effect, the unlawful entry onto premises, in itself, cannot satisfy the intent element of burglary. Can Lewis be interpreted so that the intent element is satisfied if the defendant entered the premises with intent to violate another provision of the order of protection distinct from the trespass, if that provision bars otherwise non-criminal conduct? (Assigned counsel: Jonathan Kirshbaum & Robert S. Dean, Center for Appellate Litigation, 74 Trinity Place, 11 th Floor, NYC 10006.)

Issue before the Court:  Can the prosecution establish the intent element for burglary by intended conduct that would be innocuous if an Order of Protection did not prohibit it?  (Here, trying to speak to the complainant's daughter.)

Held:  Siding with the First and Third Departments, the Court holds that (aside from a stay-away provision), a burglary conviction may be premised on an intent to engage in conduct that would be legal if not outlawed by an Order of Protection. 

CAL observes: While making it easier to charge defendants who violate Orders of Protection with burglary, the Court goes out of its way to urge prosecutors to exercise discretion at the outset before using violations of Orders of Protection as predicates for violent felony prosecutions, noting the severe punishment that accompanies a burglary charge.  However, the Court stresses that the defendant's behavior here "warranted the higher degree of culpability."  While it remains to be seen if the Court's cautionary words influence prosecutions going forward, the Court's discussion of DA discreiton may find use for defense counsel in other contexts.