Summary
In People v. Crowell, 122 Misc.2d 133, 470 N.Y.S.2d 306, 308 (1983), the court held that a contractor, who had been hired to paint a vacant house and had been given the key to the house, could not be convicted of burglary or any lesser-included charge of trespass for taking property from the house.
Summary of this case from State v. WernerOpinion
December 14, 1983
Stephen W. Arnold for defendant.
John J. Elliott, District Attorney, for plaintiff.
Defendant moves for an inspection of the Grand Jury minutes and a dismissal of the indictment upon the ground of insufficient evidence before the Grand Jury, pursuant to CPL 210.20 (subd 1, par [b]).
The question before the court is whether the facts before the Grand Jury are sufficient to establish the offense charged or any lesser included offense. The test is whether the evidence, unexplained and uncontradicted, would warrant a conviction by a trial jury. ( People v Leonardo, 89 A.D.2d 214, 217; People v Rallo, 46 A.D.2d 518, 527, affd 39 N.Y.2d 217.) The evidence must be viewed in the light most favorable to the People. ( People v Leonardo, supra; People v Sacco, 64 A.D.2d 324.)
The evidence before the Grand Jury was not sufficient to support a conviction for burglary, third degree, or any lesser included offense, and the motion must, therefore, be granted. It appears from the testimony of the alleged victim that he had contracted with defendant for the latter to paint a vacant house, and furnished defendant with the keys to the house to facilitate that project. The defendant was allowed access to the premises for the purpose of storing paint and equipment, and he was also going to paint an interior ceiling. During the course of this arrangement the defendant took a number of items of personalty from the premises and sold them for the sum of $75.
To be guilty of burglary or of any lesser included charge of trespass, one must knowingly enter or remain unlawfully in or upon premises. (Penal Law, §§ 140.05-140.30.) A person knowingly enters or remains unlawfully when he is aware that he is not licensed or privileged to do so. (Penal Law, § 15.05, subd 2; § 140.00, subd 5.) In this case, the defendant clearly was licensed or privileged to be in the victim's building. Neither the victim here nor any owner would ever intend that his permission to enter or remain would extend to accommodate a theft. However, the privilege to be within the premises is not negated by the formulation of criminal intent, or even the undertaking of criminal actions therein. ( People v Insogna, 86 A.D.2d 979; People v Miles, 85 A.D.2d 610.)
In the recent case of People v Czerminski ( 94 A.D.2d 957) the Appellate Division, Fourth Department, held that a policeman who lawfully entered and remained in a warehouse for the purpose of investigating a break-in could be found guilty of burglary when, during a two-minute stay within the premises, he stole personal property. It might be argued that Czerminski ( supra) stands for the proposition that criminal conduct does, ipso facto, terminate license or privilege to be within premises. That decision, however, appears to be founded on the narrow ground that the license or privilege of public servants, such as police officers and firemen, is one which is created by operation of law, not by any assent on the part of the owner. Since the license is created by the purpose for the officers' presence, when that purpose is changed to an unlawful one, the privilege is extinguished. ( People v Czerminski, supra.) Absent this peculiar nature of privilege by operation of law, the doctrine remains that a licensed or privileged entry or remaining is not transformed into an unlawful one upon the occurrence of criminal conduct on the part of the licensee. ( People v Brown, 25 N.Y.2d 374; People v Insogna, supra; People v Miles, supra.)
Upon reflection, it will be seen that not terminating one's license or privilege upon his commission of criminal conduct makes both practical and theoretical sense. A rule to the contrary would mean that an intoxicated house guest who loses his temper and intentionally smashes a vase becomes a burglar. Innumerable like examples can be imagined. Such was not the intent of the Legislature in creating the burglary statutes, all of which have trespassorial conduct as one essential element. Clearly, to constitute a burglary, this conduct must exist separately from and independently of the criminal intent element.
There being no evidence in this case that defendant's license or privilege to be within the premises was at any time limited or terminated, his presence was not knowingly unlawful, and the charge of burglary in the third degree must be dismissed.