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 ), 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