The Fourth Department, reversing defendant’s conviction, determined the burglary jury instruction was flawed. Defendant allowed her brother into the home where defendant resided and her brother assaulted a resident of the home in the resident’s bedroom. The jury instruction did not make clear the definitions of a building or unit as those terms are used in the burglary statute:
A person is guilty of burglary in the first degree, in pertinent part, when he or she “knowingly enters or remains unlawfully in a dwelling with intent to commit a crime therein” (Penal Law § 140.30 ). ” Dwelling’ means a building which is usually occupied by a person lodging therein at night” (§ 140.00 ), and “the definition of building’ includes the following: Where a building consists of two or more units separately secured or occupied, each unit shall be deemed both a separate building in itself and a part of the main building’ ” … .
Here, the court instructed the jurors that a “dwelling is a building which is usually occupied by a person lodging therein at night. A bedroom in a home, where there is more than one tenant, may be considered independent of the rest of the house and may be considered a separate dwelling within a building.” The court, however, failed to include the part of the definition of building that would require the jury to determine whether the house at issue consisted of “two or more units” and whether the bedroom at issue was a unit that was “separately secured or occupied” (Penal Law § 140.00 ). Consequently, “given the omission of the definition of [ unit’] and/or [ separately secured or occupied,’] the instruction did not adequately convey the meaning of [ building’] to the jury and instead created a great likelihood of confusion such that the degree of precision required for a jury charge was not met” … . People v Pritchard, 2017 NY Slip Op 03287, 4th Dept 4-28-17
CRIMINAL LAW (JUDGE DID NOT GIVE A COMPLETE JURY INSTRUCTION ON THE ELEMENTS OF BURGLARY, NEW TRIAL ORDERED)/BURGLARY (JUDGE DID NOT GIVE A COMPLETE JURY INSTRUCTION ON THE ELEMENTS OF BURGLARY, NEW TRIAL ORDERED)