You are here: / / RESIDENTIAL AREA OF MIXED USE BUILDING COULD NOT BE ACCESSED FROM WHERE...

RESIDENTIAL AREA OF MIXED USE BUILDING COULD NOT BE ACCESSED FROM WHERE DEFENDANT ENTERED, BURGLARY (ENTRY OF DWELLING) CONVICTION REVERSED.

The Court of Appeals, over an extensive dissent, determined defendant should not have been convicted of burglary (entry of a “dwelling”) because the residential area of the building could not be accessed from where he entered:

Under the narrow circumstances of this case, application of the general rule as to what constitutes a dwelling in a mixed residential and commercial building within the meaning of Penal Law § 140.00 (2) is not warranted. Defendant, from a public sidewalk, entered the open cellar doors into a basement that was both entirely disconnected from the building and completely inaccessible to the residences in that building. The basement was not contiguous to any residential units. * * * …[T]he deli basement was both inaccessible to, and remote from, the residential apartments. It was inaccessible because defendant could not go anywhere into the building from the basement. He could not reach the deli or the apartments. All that he could reach from the basement was the public sidewalk. The basement was remote given that it was not used by the residents for any purposes and that there was no proof of any relationship between that space and the residents. In sum, there was no “close contiguity” … between the basement and the dwellings. Under these facts, “the special dangers inherent in the burglary of a dwelling do not exist” … . People v Joseph, 2016 NY Slip Op 06945, CtApp 10-25-16

CRIMINAL LAW (RESIDENTIAL AREA OF MIXED USE BUILDING COULD NOT BE ACCESSED FROM WHERE DEFENDANT ENTERED, BURGLARY CONVICTION REVERSED)/BURGLARY (RESIDENTIAL AREA OF MIXED USE BUILDING COULD NOT BE ACCESSED FROM WHERE DEFENDANT ENTERED, BURGLARY CONVICTION REVERSED)/DWELLING (BURGLARY, (RESIDENTIAL AREA OF MIXED USE BUILDING COULD NOT BE ACCESSED FROM WHERE DEFENDANT ENTERED, BURGLARY CONVICTION REVERSED)

You might also like
Complaint Pursuant to the “Whistleblower” Statute Need Not Identify the Particular Statute or Regulation Alleged to Have Been Violated by the Employer
Illegal Arrest Did Not Taint Identification Procedure – Attentuation Doctrine Applied
DEFENDANT SHOULD NOT HAVE BEEN ASSESSED POINTS UNDER RISK FACTOR 7, DEFENDANT HAD LONG-TERM NON-SEXUAL RELATIONSHIPS WITH THE VICTIMS BEFORE THE ABUSE STARTED, DEFENDANT DID NOT ESTABLISH THE RELATIONSHIPS FOR THE PRIMARY PURPOSE OF VICTIMIZATION.
ONCE THE APPELLATE DIVISION DECIDED THE NYC DEPARTMENT OF BUILDINGS ACTED RATIONALLY IN APPROVING THE USE OF A BUILDING AS A HOMELESS SHELTER ITS JUDICIAL REVIEW WAS DONE; THE APPELLATE DIVISION SHOULD NOT HAVE REMITTED THE MATTER FOR A HEARING ON THE SAFETY OF THE BUILDING (CT APP).
Plea Allocution Negated Essential Element of Offense/Error, though Unpreserved, Required Reversal
DEPRAVED INDIFFERENCE ASSAULT CONVICTION INVOLVING A SINGLE VICTIM AFFIRMED, DEPRAVED INDIFFERENCE ASSAULT NEED NOT FIT WITHIN THE NARROW EXCEPTIONS CARVED OUT FOR DEPRAVED INDIFFERENCE MURDER (CT APP).
THE APPELLATE DIVISION’S VACATION OF DEFENDANT’S FIRST DEGREE MURDER CONVICTION WAS AFFIRMED; THE PEOPLE DID NOT PROVE THE “RELISHING THE INFLICTION OF EXTREME PAIN” ELEMENT (CT APP).
WHETHER “CLEANING” IS A COVERED ACTIVITY UNDER LABOR LAW 240(1) DEPENDS ON WHETHER THE CLEANING WORK IS “ROUTINE;” “ROUTINE” CLEANING WORK IS NOT COVERED (CT APP). ​

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 © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

PEOPLE DID NOT ACT WITH DUE DILIGENCE SEEKING DNA TEST RESULTS; INDICTMENT PROPERLY... PRECEDENT ALLOWING VOLUNTARY POST-MIRANDA STATEMENTS TO BE USED TO IMPEACH ...