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A person commits burglary in the second degree when he or she knowingly enters a building with the intent to commit a crime and where factors tending to increase the likelihood of physical injury are present (N.Y. Penal Law § 140.25(1)) or the building is a dwelling (N.Y. Penal Law § 140.25(2)). A dwelling is defined as a building which is usually occupied by a person lodging therein at night (N.Y. Penal Law § 140.00(3)).
In August 1999, the only occupant of the subject premises died in a motorcycle accident. Defendant Earl Barney, knowing that the house's occupant recently died, entered it in an attempt to steal the marijuana kept in the house. He was unable to locate the marijuana, thus, he began to gather other property found in the house but the police, summoned by a neighbor, came and arrested him. At the time, the utilities were still connected and the house was furnished. Although the house was owned by decedent's mother, she maintained a separate residence and had no intention of moving in. Defendant was indicted for second degree burglary and attempted petit larceny. At trial, the court denied his request to submit the lesser included offenses of burglary in the third degree or criminal trespass in the third degree to the jury, and denied defendant's motion to dismiss the charge of second-degree burglary on the ground of insufficient evidence. Defendant was subsequently convicted of burglary in the second degree and attempted petit larceny. The appellate division affirmed the conviction and held that a consideration of all the relevant factors supported the conclusion that the dwelling retained its character as such based upon its immediate past residential use. Defendant sought review.
Was the defendant’s conviction proper?
The court affirmed the appellate court’s judgment and held that a "dwelling," for purposes of a burglary prosecution, was a building usually occupied by a person lodging therein at night, under N.Y. Penal Law § 140.00(3). In this case, since the house still had working utilities and contained the decedent's property, the jury could find it fit the statutory definition. The appellate court also held that defendant was not entitled to a lesser-included offense instruction for third degree burglary, under N.Y. Penal Law § 140.20, which was burglary of a building, because under no reasonable view of the evidence did the appellant commit third degree burglary but not second degree burglary, under N.Y. Penal Law § 140.25(2), because under no reasonable view of the evidence was the house not a dwelling, given the statutory definition, despite the lack of its occupant's intent to return. The court ruled that the house did not lose its character as a dwelling immediately upon its sole occupant's death. Also, a sufficient record was not presented to allow review of appellant’s argument that the trial court erred in refusing to accept his waiver of his right to be present during voir dire.