You are here: / / First Degree Burglary Conviction Upheld Even though the Residential Portion...

First Degree Burglary Conviction Upheld Even though the Residential Portion of the Building Was Not Accessible from the Basement of the First-Floor Store Where the Defendant Entered the Building

The First Department, over a two-justice dissent, determined that defendant was properly convicted of first degree burglary even though the residential portion of the building could not be accessed from the the basement of the first-floor store, where defendant entered the building.  The majority found that the exception fashioned for “large” buildings where the residents could not be aware of the defendant’s presence in the non-residential portion of the building did not apply:

In McCray, the Court of Appeals reaffirmed the rule, established in Quinn v People (71 NY 561 [1878]), that “if a building contains a dwelling, a burglary committed in any part of that building is the burglary of a dwelling; but an exception exists where the building is large and the crime is committed in a place so remote and inaccessible from the living quarters that the special dangers inherent in the burglary of a dwelling do not exist” (McCray, 23 NY3d at 624). Although the inaccessibility requirement appears to have been met, the other condition for application of the exception  – namely, that the building in question be “large” – has not.

Stating that the decision in McCray did not turn on the size of the building, and that the critical factor is whether there is close contiguity between the residential and nonresidential elements of the building such that the residents of the building would be aware of the burglar’s presence, the dissent would reverse the conviction for second-degree burglary because the basement was entirely sealed off and inaccessible from the residences above. However, in Quinn, which is the foundation on which McCray stands, there also was no “internal communication” between the shop that was broken into and the living quarters above, and a person had to go into the yard and then up stairs to get from one to another (Quinn at 565). Nevertheless, the Court of Appeals affirmed the conviction of first-degree burglary because the shop “was within the same four outer walls, and under the same roof” (id.). The Court reasoned that “the essence of the crime of burglary at common law is the midnight terror excited, and the liability created by it of danger to human life, growing out of the attempt to defend property from depredation. It is plain that both of these may arise, when the place entered is in close contiguity with the place of the owner’s repose, though the former has no relation to the latter by reason of domestic use or adaptation” (id. at 567). People v Joseph, 2015 NY Slip Op 00299, 1st Dept 1-13-15

 

You might also like
PLAINTIFF WAS STANDING ON AN A-FRAME LADDER WHEN AN ELECTRICAL EXPLOSION CAUSED HIM AND THE LADDER TO FALL TO THE GROUND; THERE WAS NO EVIDENCE THE LADDER WAS DEFECTIVE; BECAUSE PLAINTIFF DID NOT PRESENT ANY EVIDENCE THAT A SAFETY DEVICE WOULD HAVE PREVENTED THE FALL, HE WAS NOT ENTITLED TO SUMMARY JUDGMENT (FIRST DEPT).
IN THE FACE OF BATSON CHALLENGES, THE FACTS THAT A JUROR HAD SERVED ON A HUNG JURY AND WORKED AT A SOUP KITCHEN AND ANOTHER JUROR WORKED FOR A COMMUNITY ORGANIZATION HELPING HIV-POSITIVE DRUG USERS WERE DEEMED VALID, RACE-NEUTRAL REASONS FOR STRIKING THE JURORS, THE CONCURRENCE NOTED THESE REASONS WERE BASED UPON QUESTIONABLE ASSUMPTIONS (FIRST DEPT)
DEFENSE COUNSEL MISCALCULATED THE NUMBER OF DAYS OF DELAY ATTRIBUTABLE TO THE PEOPLE IN THE SPEEDY TRIAL MOTION, WHICH CONSTITUTED INEFFECTIVE ASSISTANCE, CONVICTION REVERSED, INDICTMENT DISMISSED (FIRST DEPT).
THE LITIGATION PRIVILEGE WHICH APPLIES TO DEFAMATION ACTIONS WAS NOT APPLICABLE HERE IN THIS BREACH OF CONTRACT ACTION ALLEGING BREACH OF CONFIDENTIALITY AND NONDISPARAGEMENT PROVISIONS; DEFENDANT ALLEGEDLY THREATENED TO PROVIDE DAMAGING TESTIMONY IN ANOTHER ACTION INVOLVING PLAINTIFFS, IN WHICH DEFENDANT WAS NOT A PARTY, IF DEFENDANT’S DEMANDS WERE NOT MET (FIRST DEPT).
Revocation of Plumber’s License Too Severe a Penalty
A MOVING CAR IS A PLACE WHERE THE VICTIM IS NOT LIKELY TO BE FOUND WITHIN THE MEANING OF THE KIDNAPPING STATUTE, UNDER THE FACTS, UNLAWFUL IMPRISONMENT WAS NOT A LESSER INCLUDED OFFENSE.
PLAINTIFF’S COUNSEL SHOULD NOT HAVE BEEN DISQUALIFIED; HER TESTIMONY ABOUT HER ALLEGED CONDUCT AT THE INDEPENDENT MEDICAL EXAMINATION (IME) WOULD HAVE BEEN CUMULATIVE AND DEFENDANTS COULD NOT SHOW THE IME WAS COMPROMISED IN ANY WAY (FIRST DEPT).
PLAINTIFF ASSUMED THE RISK OF INJURY CAUSED BY AN OPEN AND OBVIOUS DEFECT IN AN OUTSIDE BASKETBALL COURT.

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

Proof Insufficient to Demonstrate Will Drafted and Signed a Few Days Before... Conditions Spelled Out in an Irrevocable Stand-By Letter of Credit Had Been...