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ADDING DEFENDANT’S NAME TO A “JOHN DOE DNA INDICTMENT” WITHOUT FURTHER GRAND JURY PROCEEDINGS IS NOT A JURISDICTIONAL DEFECT AND IS THEREFORE WAIVED BY A GUILTY PLEA.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, over an extensive dissenting opinion, determined defendants’ challenges to the procedure by which he was indicted were not jurisdictional in nature and, therefore, did not survive his guilty plea. A so-called “DNA indictment” named a John Doe because the DNA from the perpetrator could not be matched to anyone in the DNA database. Years later, DNA taken from the defendant was matched to that in the “John Doe” DNA indictment. The People then moved to add defendant’s name to the indictment based upon hearsay statements in the motion papers. The motion was granted. Defendant argues that he was deprived of his right to indictment by grand jury because his name was added to the “John Doe” indictment in the absence of any additional proceedings in front of a grand jury:

A jurisdictional defect in an indictment may not be waived by a guilty plea and can be raised for the first time on appeal … . “[A]n indictment is jurisdictionally defective only if it does not effectively charge the defendant with the commission of a particular crime, by, for example, failing to allege every material element of the crime charged, or alleging acts that do not equal a crime at all” … . * * *

Insufficiency of an indictment’s factual allegations … does not constitute a jurisdictional defect that is reviewable by this Court … , and, once a guilty plea has been entered, “the sufficiency of the evidence before the grand jury cannot be challenged” … . Thus, “‘[a] guilty plea generally results in a forfeiture of the right to appellate review of any nonjurisdictional defects in the proceedings'”

Here, the DNA indictment properly charged a person with acts that constitute a crime, albeit identifying the individual by a unique DNA profile rather than by his name. As such, it avoided … jurisdictional infirmities … . Defendant’s challenge to the legal sufficiency of the DNA indictment is based on the failure to identify him as the perpetrator by name, but this alleged defect is not a jurisdictional one, and therefore, does not survive his guilty plea. By pleading guilty, defendant acknowledged that he was the person who committed the offense. Defendant therefore forfeited his challenge and is foreclosed from raising the issue on appeal. Once defendant pleaded guilty, his “‘conviction rest[ed] directly on the sufficiency of the plea, not on the legal or constitutional sufficiency of any proceedings which might have led to a conviction after trial'”… . People v Guerrero, 2016 NY Slip Op 07044, CtApp 10-27-16

 

CRIMINAL LAW (ADDING DEFENDANT’S NAME TO A “JOHN DOE DNA INDICTMENT” WITHOUT FURTHER GRAND JURY PROCEEDINGS IS NOT A JURISDICTIONAL DEFECT AND IS THEREFORE WAIVED BY A GUILTY PLEA)/INDICTMENT (ADDING DEFENDANT’S NAME TO A “JOHN DOE DNA INDICTMENT” WITHOUT FURTHER GRAND JURY PROCEEDINGS IS NOT A JURISDICTIONAL DEFECT AND IS THEREFORE WAIVED BY A GUILTY PLEA)/DNA INDICTMENT (ADDING DEFENDANT’S NAME TO A “JOHN DOE DNA INDICTMENT” WITHOUT FURTHER GRAND JURY PROCEEDINGS IS NOT A JURISDICTIONAL DEFECT AND IS THEREFORE WAIVED BY A GUILTY PLEA)/GRAND JURY (DNA INDICTMENT, ADDING DEFENDANT’S NAME TO A “JOHN DOE DNA INDICTMENT” WITHOUT FURTHER GRAND JURY PROCEEDINGS IS NOT A JURISDICTIONAL DEFECT AND IS THEREFORE WAIVED BY A GUILTY PLEA)

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APPELLATE DIVISION APPLIED THE WRONG TEST TO A MOTION TO SET ASIDE THE VERDICT AS A MATTER OF LAW; APPLYING THE CORRECT TEST, THE JURY VERDICT WAS NOT “UTTERLY IRRATIONAL” AND SHOULD NOT HAVE BEEN SET ASIDE.

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, determined the Appellate Division used the wrong test when it reversed a civil assault verdict and ordered a new trial. The central issue was whether defendant was the initial aggressor. In the first trial, the jury found that the defendant had acted in self-defense. The plaintiff moved to set aside the verdict as a matter of law and, alternatively, to set aside the verdict as against the weight of the evidence. The trial court denied the motion. The Appellate Division, applying a weight of the evidence test, reversed and held ” ‘no fair interpretation of the evidence’ supported ‘the verdict finding that defendant acted in self-defense’ inasmuch as it was predicated upon ‘a conclusion that defendant was not the initial aggressor in the encounter’ .” Based on the Appellate Division’s ruling, at the second trial, the defendant was deemed the initial aggressor as a matter of law and the jury found for the plaintiff. The Court of Appeals held that the test the Appellate Division should have applied on its review of the first trial was the “utterly irrational (matter of law)” test, not the “weight of the evidence” test. Applying the correct test, the Court of Appeals found that the jury’s conclusion the defendant acted in self-defense was not “utterly irrational.” Therefore the Appellate Division should not have set aside defendant’s verdict and then precluded him from presenting the “initial aggressor/self-defense” question to the jury in the second trial:

The question before us is whether the Appellate Division’s legal conclusion in its 2012 order was reached under the proper test. When the Appellate Division reviews a jury determination, it may either examine the facts to determine whether the weight of the evidence comports with the verdict, or the court may determine that the evidence presented was insufficient as a matter of law, rendering the verdict utterly irrational … . Defendant argues that the Appellate Division erred by setting aside the jury verdict in his favor and improperly determining as a matter of law that a justification defense was unavailable to him, without finding the verdict to be utterly irrational. We agree. * * *

In its 2012 order, although the Appellate Division examined the facts and determined that “the jury’s conclusion that defendant was not the first to threaten the immediate use of physical force [wa]s unreachable on any fair interpretation of the evidence” (98 AD3d 830) — ostensibly a weight of the evidence review — the effect of that order was to hold as a matter of law that defendant was the initial aggressor to whom the defense of justification was not available — a determination that could only be reached by concluding that the verdict was “utterly irrational.” Yet, the Appellate Division did not use the utterly irrational test. The Appellate Division’s error in not applying the proper test resulted in defendant being improperly precluded from raising a justification defense on the retrial. Defendant should have been afforded a new trial on all the issues in the case, including consideration of his justification defense by the jury. Despite this error, reversal is only required if we find that the jury verdict was not utterly irrational.

Because determining whether a jury verdict was utterly irrational involves a pure question of law, this Court may look at the trial evidence and make that determination … . We must consider the jury charge as to initial aggressor and self-defense that was given during the first trial because the instruction, submitted without objection, is the law of the case … . Based on that instruction, … we hold that the jury’s determination that defendant acted in self-defense was not utterly irrational. * * *

Accordingly, the order appealed from and the … Appellate Division order insofar as brought up for review should be reversed, with costs, and the matter remitted to Supreme Court for a new trial in accordance with the opinion herein. Killon v Parrotta, 2016 NY Slip Op 07048, CtApp 10-27-16

CIVIL PROCEDURE (APPEALS, APPELLATE DIVISION APPLIED TO WRONG TEST TO A MOTION TO SET ASIDE THE VERDICT AS A MATTER OF LAW; APPLYING THE CORRECT TEST, THE JURY VERDICT WAS NOT “UTTERLY IRRATIONAL” AND SHOULD NOT HAVE BEEN SET ASIDE)/APPEALS (CIVIL, MOTION TO SET ASIDE VERDICT AS A MATTER OF LAW, APPELLATE DIVISION APPLIED TO WRONG TEST TO A MOTION TO SET ASIDE THE VERDICT AS A MATTER OF LAW; APPLYING THE CORRECT TEST, THE JURY VERDICT WAS NOT “UTTERLY IRRATIONAL” AND SHOULD NOT HAVE BEEN SET ASIDE)/VERDICT, MOTION TO SET ASIDE (APPEALS, APPELLATE DIVISION APPLIED TO WRONG TEST TO A MOTION TO SET ASIDE THE VERDICT AS A MATTER OF LAW; APPLYING THE CORRECT TEST, THE JURY VERDICT WAS NOT “UTTERLY IRRATIONAL” AND SHOULD NOT HAVE BEEN SET ASIDE)

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FAILURE TO ARGUE PEOPLE DID NOT ACT WITH DUE DILIGENCE IN SEEKING DNA TEST RESULTS WAS NOT DEMONSTRATED TO CONSTITUTE INEFFECTIVE ASSISTANCE.

The Court of Appeals, in a full-fledged opinion by Judge DiFiore, determined defense counsel’s failure to argue, in a motion to dismiss on speedy trial grounds, that the People did not act with due diligence in seeking DNA test results was not demonstrated to constitute ineffective assistance:

On this record, defense counsel was not ineffective for failing to raise the argument that the People were not acting with due diligence, as there is nothing in the record to demonstrate that the People were not diligent in requesting DNA testing on the evidence or that the manner in which the DNA testing was conducted by [the medical examiner] was inconsistent with standard laboratory protocols. In addition, at the time of defendant’s CPL 30.30 motion, there already was Appellate Division authority holding that the period of time needed to obtain the results of DNA testing could be excluded from speedy trial computation as an exceptional circumstance … . People v Henderson, 2016 NY Slip Op 06938, CtApp 10-25-16

CRIMINAL LAW (FAILURE TO ARGUE PEOPLE DID NOT ACT WITH DUE DILIGENCE IN SEEKING DNA TEST RESULTS WAS NOT DEMONSTRATED TO CONSTITUTE INEFFECTIVE ASSISTANCE)/ATTORNEYS (CRIMINAL LAW, FAILURE TO ARGUE PEOPLE DID NOT ACT WITH DUE DILIGENCE IN SEEKING DNA TEST RESULTS WAS NOT DEMONSTRATED TO CONSTITUTE INEFFECTIVE ASSISTANCE)/INEFFECTIVE ASSISTANCE (FAILURE TO ARGUE PEOPLE DID NOT ACT WITH DUE DILIGENCE IN SEEKING DNA TEST RESULTS WAS NOT DEMONSTRATED TO CONSTITUTE INEFFECTIVE ASSISTANCE)/DNA TESTING (CRIMINAL LAW, FAILURE TO ARGUE PEOPLE DID NOT ACT WITH DUE DILIGENCE IN SEEKING DNA TEST RESULTS WAS NOT DEMONSTRATED TO CONSTITUTE INEFFECTIVE ASSISTANCE)/SPEEDY TRIAL (FAILURE TO ARGUE PEOPLE DID NOT ACT WITH DUE DILIGENCE IN SEEKING DNA TEST RESULTS WAS NOT DEMONSTRATED TO CONSTITUTE INEFFECTIVE ASSISTANCE

YOGA INSTRUCTORS NOT EMPLOYEES.

The Court of Appeals, reversing the Appellate Division, over a two-judge dissent, determined the non-staff yoga instructors who worked for Yoga Vida were not employees entitled to unemployment insurance benefits:

The non-staff instructors make their own schedules and choose how they are paid (either hourly or on a percentage basis). Unlike staff instructors, who are paid regardless of whether anyone attends a class, the non-staff instructors are paid only if a certain number of students attend their classes. Additionally, in contrast to the staff instructors, who cannot work for competitor studios within certain geographical areas, the studio does not place any restrictions on where the non-staff teachers can teach, and the instructors are free to inform Yoga Vida students of classes they will teach at other locations so the students can follow them to another studio. Furthermore, only staff instructors, as distinct from non-staff instructors, are required to attend meetings or receive training. The proof of incidental control relied upon by the Board, including that Yoga Vida inquired if the instructors had proper licenses, published the master schedule on its web site, and provided the space for the classes, does not support the conclusion that the instructors are employees. Similarly, in this context, the evidence cited by the dissent, including that Yoga Vida generally determines what fee is charged and collects the fee directly from the students, and provides a substitute instructor if the non-staff instructor is unable to teach a class and cannot find a substitute, does not supply sufficient indicia of control over the instructors. Furthermore, that Yoga Vida received feedback about the instructors from the students does not support the Board’s conclusion. “The requirement that the work be done properly is a condition just as readily required of an independent contractor as of an employee and not conclusive as to either” … . Matter of Yoga Vida NYC (Commissioner of Labor), 2016 NY Slip Op 06940, CtApp 10-25-16

UNEMPLOYMENT INSURANCE (YOGA INSTRUCTORS NOT EMPLOYEES)

CRIMINAL ASSAULT BY ONE HOCKEY GAME SPECTATOR AGAINST ANOTHER NOT FORESEEABLE; YOUTH HOCKEY ASSOCIATION NOT NEGLIGENT.

The Court of Appeals determined defendant youth hockey association could not be held liable for an assault by one spectator on another spectator after the hockey game:

On this record, the criminal assault on plaintiff was not a reasonably foreseeable result of any failure to take preventive measures. While defendant owed a duty to protect spectators from foreseeable criminal conduct, the scope of that duty is defined by the likelihood that the aggressive behavior would lead to a criminal assault. Defendant took measures to address player and spectator conduct. The behavior of the fans, however inappropriate, certainly did not create the risk that failure to eject any specific spectator would result in a criminal assault, particularly since such an assault had never happened before … .

Plaintiff argues that defendant’s failure to enforce the Zero-Tolerance policy by ejecting spectators constitutes independent evidence of negligence. The policy provides that “the on-ice official” will remove spectators using “obscene, racial or vulgar language” from the game. However, the “[v]iolation of a[n] [organization]’s internal rules is not negligence in and of itself” … , and where an internal policy exceeds “the standard of ordinary care,” it “cannot serve as a basis for imposing liability” … . Pink v Rome Youth Hockey Assn., Inc., 2016 NY Slip Op 06946, CtApp 10-25-16

 

NEGLIGENCE (CRIMINAL ASSAULT BY ONE HOCKEY GAME SPECTATOR AGAINST ANOTHER NOT FORESEEABLE; YOUTH HOCKEY ASSOCIATION NOT NEGLIGEN/ASSAULT (NEGLIGENCE, CRIMINAL ASSAULT BY ONE HOCKEY GAME SPECTATOR AGAINST ANOTHER NOT FORESEEABLE; YOUTH HOCKEY ASSOCIATION NOT NEGLIGENT)/SPECTATORS (HOCKEY GAME, (CRIMINAL ASSAULT BY ONE HOCKEY GAME SPECTATOR AGAINST ANOTHER NOT FORESEEABLE; YOUTH HOCKEY ASSOCIATION NOT NEGLIGENT)

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PLAINTIFF SUING SHERIFF FOR FAILURE TO KEEP HIM SAFE FROM ASSAULT IN JAIL (1) DID NOT NEED TO FILE A NOTICE OF CLAIM AND (2) STATED A CAUSE OF ACTION IN NEGLIGENCE.

The Court of Appeals, in a full-fledged opinion by Judge Stein, concerning a lawsuit alleging the Erie County Sheriff was negligent in failing to protect plaintiff from sexual assault while in jail, determined: (1) plaintiff did not need to file a notice of claim because the county can not, under the NYS Constitution, indemnify and defend the sheriff in connection with the action; (2) the complaint stated a cause of action in negligence (failure to keep an inmate safe); and (3) governmental immunity is an affirmative defense on which the sheriff bears the burden of proof which cannot be addressed at the pleading stage. The fact that the county provided law enforcement liability insurance for the sheriff did not trigger the notice of claim requirement under the Municipal Law:

… [T]hat the County agreed to provide “Liability Insurance” for the Sheriff in exchange for consideration because “policies of law enforcement liability insurance paid for by the County” had become prohibitively expensive. In resolving to act as an insurer, the County recognized — as was commonly understood at the time — that it could not statutorily obligate itself to defend and indemnify the Sheriff, as it had agreed to do for the Sheriff’s employees, under the New York State Constitution … . Absent the existence of any statutory obligation on the County to indemnify the Sheriff — as opposed to an agreement to act as his insurer — the Appellate Division correctly ruled that service of a notice of claim was not required under General Municipal Law § 50-e. …

While the State is by no means an insurer of inmate safety or required to provide unremitting surveillance in all circumstances … , we explained in Sanchez [99 NY2d 247] that, “[h]aving assumed physical custody of inmates, who cannot protect and defend themselves in the same way as those at liberty can, the State owes a duty of care to safeguard inmates, even from attacks by fellow inmates” … . Inasmuch as “the Sheriff is [similarly] prescribed, by law, to safely keep inmates of the County Jail” … , the rule set forth in Sanchez applies equally here. Villar v Howard, 2016 NY Slip Op 06944, CtApp 10-25-16

 

MUNICIPAL LAW (PLAINTIFF SUING SHERIFF FOR FAILURE TO KEEP HIM SAFE FROM ASSAULT IN JAIL (1) DID NOT NEED TO FILE A NOTICE OF CLAIM AND (2) STATED A CAUSE OF ACTION IN NEGLIGENCE)/NEGLIGENCE (PLAINTIFF SUING SHERIFF FOR FAILURE TO KEEP HIM SAFE FROM ASSAULT IN JAIL (1) DID NOT NEED TO FILE A NOTICE OF CLAIM AND (2) STATED A CAUSE OF ACTION IN NEGLIGENCE)/NOTICE OF CLAIM (PLAINTIFF SUING SHERIFF FOR FAILURE TO KEEP HIM SAFE FROM ASSAULT IN JAIL (1) DID NOT NEED TO FILE A NOTICE OF CLAIM AND (2) STATED A CAUSE OF ACTION IN NEGLIGENCE)/SHERIFF (PLAINTIFF SUING SHERIFF FOR FAILURE TO KEEP HIM SAFE FROM ASSAULT IN JAIL (1) DID NOT NEED TO FILE A NOTICE OF CLAIM AND (2) STATED A CAUSE OF ACTION IN NEGLIGENCE)

HEARING OFFICER FAILED TO MAKE A MEANINGFUL INQUIRY INTO INMATE WITNESS’S ALLEGATION HE WAS COERCED INTO REFUSING TO TESTIFY.

The Court of Appeals, in a full-fledged opinion by Judge Fahey, determined: (1) an inmate's statement that he/she does not wish to be involved or does not want to testify is sufficient to protect the inmate's right to call the witness; and (2) the hearing officer's failure to inquire into an inmate witness's allegation of he was coerced into refusing to testify required reversal:

… [W]hen there is a “claim of coercion, . . . the Hearing Officer ha[s] a duty to inquire further into [the] refusal to testify” … . Whether such an inquiry will require an in-person or telephone interview of the refusing inmate by the hearing officer or may instead proceed through the intermediary of a suitably briefed correction officer will depend on the circumstances surrounding the allegation.

Here, the hearing officer failed to make a meaningful inquiry, either personally or through a correction officer, into the allegation of coercion by the refusing inmate witness. Matter of Cortorreal v Annucci, 2016 NY Slip Op 06943, CtApp 10-25-16

DISCIPLINARY HEARINGS (INMATES) (HEARING OFFICER FAILED TO MAKE A MEANINGFUL INQUIRY INTO INMATE WITNESS'S ALLEGATION HE WAS COERCED INTO REFUSING TO TESTIFY)

STATEMENTS ALLEGING MAFIA INVOLVEMENT IN A STRIP CLUB WERE NOT “OF AND CONCERNING” INDIVIDUAL PLAINTIFFS WHO PROVIDED FOOD, BEVERAGE AND TALENT SERVICES TO THE CLUB.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, over a dissent, determined a defamation suit was properly dismissed because the alleged defamatory remarks were not “of and concerning” the plaintiffs. Television news broadcasts claimed that the Cheetah Club, a strip club, was involved in human trafficking orchestrated by the mafia. The story claimed women from Russia and Eastern Europe were brought into this country, set up with sham marriages to American citizens, and then forced to dance at the club. The plaintiffs, Times Square Restaurant Group, Times Square Restaurant No. 1 and individual plaintiffs associated with the Times Square plaintiffs, O’Neill, Callahan and Stein, provided management and talent services to the Cheetah Club. Only the individual plaintiffs, O’Neill, Callahan and Stein, appealed the dismissal of the defamation complaint:

In order to establish a prima facie case of defamation, plaintiffs must show that the matter published is “of and concerning” them … . Although it is not necessary for the plaintiffs to be named in the publication, they must plead and prove that the statement referred to them and that a person hearing or reading the statement reasonably could have interpreted it as such … . This burden is not a light one, and the question of whether an allegedly defamatory statement could reasonably be interpreted to be “of and concerning” a particular plaintiff is a question of law for the courts to decide … .

Accepting as true each and every allegation in the complaint, the challenged statements were not of and concerning plaintiffs O’Neill, Callahan and Stein. The news broadcast stated that Cheetah’s was purportedly used by the mafia to carry out a larger trafficking scheme. It did not mention any employees of the club or of the management and talent agencies that facilitate its daily operations, let alone the individual plaintiffs in these appeals, who were not identified or pictured in the report. In context, the statement that Cheetah’s was “run by the mafia” could not reasonably have been understood to mean that certain unnamed individuals who do not work for Cheetah’s but oversee its food, beverage and talent services are members of organized crime … . Nor did the challenged statements describe a particular, specifically-defined group of individuals who “run” the Cheetah Club, such that the small group libel doctrine would apply … . Contrary to the dissent’s assertion, defendants’ broadcast referred only to the club and failed to include sufficient particulars of identification in order to be actionable by an individual … . Three Amigos SJL Rest., Inc. v CBS News Inc., 2016 NY Slip Op 06941, CtApp 10-25-16

 

DEFAMATION (STATEMENTS ALLEGING MAFIA INVOLVEMENT IN A STRIP CLUB WERE NOT “OF AND CONCERNING” INDIVIDUAL PLAINTIFFS WHO PROVIDED FOOD, BEVERAGE AND TALENT SERVICES TO THE CLUB)

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PRECEDENT ALLOWING VOLUNTARY POST-MIRANDA STATEMENTS TO BE USED TO IMPEACH REAFFIRMED.

The Court of Appeals, in a full-fledged opinion by Judge Pigott, reaffirmed its precedent allowing voluntary statements made after Miranda rights have been invoked to be used to impeach should the defendant take the stand:

This Court has long held that if a statement made by the defendant to the police is voluntary, it may be used for impeachment purposes; but if a statement is involuntary, it will not be admissible, even if it may be deemed reliable … . * * *

Here, County Court determined that the statements were voluntary and the Appellate Division affirmed that determination. …  …[T]here is nothing in the record to support defendant’s contention that [the interrogating officer] consciously circumvented defendant’s invocation of his Fifth Amendment rights or otherwise rendered defendant’s statements involuntary as a matter of law. Thus, it cannot be said that County Court abused its discretion in denying defendant’s motion to preclude the People from utilizing the statements on cross-examination or rebuttal. People v Wilson, 2016 NY Slip Op 06942, CtApp 10-25-16

 

CRIMINAL LAW (PRECEDENT ALLOWING VOLUNTARY POST-MIRANDA STATEMENTS TO BE USED TO IMPEACH REAFFIRMED)/EVIDENCE PRECEDENT ALLOWING VOLUNTARY POST-MIRANDA STATEMENTS TO BE USED TO IMPEACH REAFFIRMED)/STATEMENTS (CRIMINAL LAW, PRECEDENT ALLOWING VOLUNTARY POST-MIRANDA STATEMENTS TO BE USED TO IMPEACH REAFFIRMED

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)

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