Summary
noting that although the “apartment” did not comply with code, there was no requirement that in order to be considered a “dwelling” for purposes of burglary, the building had to comply with “certificates of occupancy, building codes and the like,” such as a city order to vacate due to fire damage
Summary of this case from Howell v. StateOpinion
3105/94, -15221, 15220, 15219
05-26-2015
The PEOPLE of the State of New York, Respondent, v. Jose SALGADO, Defendant–Appellant.
Steven Banks, The Legal Aid Society, New York (Laura Lieberman Cohen of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Harriett Galvin of counsel), for respondent.
Steven Banks, The Legal Aid Society, New York (Laura Lieberman Cohen of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Harriett Galvin of counsel), for respondent.
MAZZARELLI, J.P., ACOSTA, RENWICK, MANZANET–DANIELS, FEINMAN, JJ.
Opinion
Order, Supreme Court, New York County (Patricia Nunez, J.), entered on or about August 4, 2011, which denied defendant's CPL 440.10 motion to vacate a May 17, 1994 judgment convicting him, upon his plea of guilty, of attempted burglary in the second degree, and sentencing him, as a second felony offender, to a term of 2 to 4 years, unanimously affirmed.
Defendant's motion is procedurally defective under CPL 440.10(2)(c) and 440.30(4)(d). In any event, it is without merit.
Defendant contends that the building he was accused of burglarizing was not a dwelling under the Penal Law, that his counsel rendered ineffective assistance by failing to ascertain the building's true status and make use of this information in his plea bargaining strategy, and that his guilty plea to attempted second-degree burglary (requiring the premises to be a dwelling) was invalid or inadvisable. However, the People claim that the educational building at issue contained an occupied superintendent's apartment in its basement that rendered the entire building a dwelling under the principles set forth in People v. McCray, 23 N.Y.3d 621, 992 N.Y.S.2d 475, 16 N.E.3d 533 (2014). Defendant's sole attempt to refute that contention is based on irrelevant documents suggesting that the basement apartment might not have complied with the certificate of occupancy in effect for the building at the time of the burglary. “Dwelling” is defined simply as “a building which is usually occupied by a person lodging therein at night” (Penal Law § 140.00 [3 ] ). There is nothing in the Penal Law to suggest an additional requirement of compliance with certificates of occupancy, building codes and the like (see People v. Santospago, 198 A.D.2d 313, 603 N.Y.S.2d 551 [2d Dept.1993], lv. denied 82 N.Y.2d 930, 610 N.Y.S.2d 182, 632 N.E.2d 492 [1994] [dwelling status not affected by lack of C of O]; see also People v. Abarrategui, 306 A.D.2d 20, 21, 761 N.Y.S.2d 632 [1st Dept.2003], lv. denied 100 N.Y.2d 617, 767 N.Y.S.2d 400, 799 N.E.2d 623 [2003] [same result; emergency access restrictions]; People v. Mullally, 38 Misc.3d 1002, 1009, 956 N.Y.S.2d 871 [Sup.Ct., Queens County 2013] [same result; City's vacate order] ).