People v. Barney
786 N.E.2d 31, 756 N.Y.S.2d 132, 99 N.Y.2d 367 (2003)
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Rule of Law:
A building does not cease to be a 'dwelling' for the purposes of a second-degree burglary charge immediately upon the death of its sole occupant. Courts must consider the totality of the circumstances, including the structure's nature and its immediate past use as a residence, to determine if it is 'usually occupied.'
Facts:
- On August 21, 1999, the sole occupant of a one-family house died in a motorcycle accident.
- The defendant, Barney, knew that the occupant had died.
- Barney also believed the decedent kept marijuana in the house.
- Three days after the occupant's death, Barney entered the house through an unlocked door to search for the drugs.
- Unable to find marijuana, Barney began gathering other property from inside the house.
- At the time of the entry, the house was fully furnished, and all utilities were still connected.
- The house was owned by the decedent's mother, who lived elsewhere and did not intend to move in.
- Prior to the burglary, the decedent's mother had given a key to a friend of her son so he could take care of the premises.
Procedural Posture:
- The defendant, Barney, was indicted for second-degree burglary and attempted petit larceny in a trial court.
- At trial, the court denied Barney's motion to dismiss the second-degree burglary charge for insufficient evidence.
- The trial court also refused Barney's request to instruct the jury on the lesser included offense of third-degree burglary.
- A jury convicted Barney of second-degree burglary and attempted petit larceny.
- Barney (appellant) appealed the conviction to the Appellate Division of the Supreme Court, an intermediate appellate court.
- A divided Appellate Division affirmed the conviction, with two justices dissenting.
- One of the dissenting justices granted Barney leave to appeal to the Court of Appeals of New York, the state's highest court.
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Issue:
Does a house cease to be a 'dwelling' under New York Penal Law § 140.00 (3) for the purposes of a second-degree burglary charge when its sole occupant has recently died?
Opinions:
Majority - Ciparick, J.
No. A house does not automatically lose its character as a dwelling under Penal Law § 140.00(3) immediately upon the death of its sole occupant. The statutory definition of a dwelling as a building 'usually occupied by a person lodging therein at night' creates a flexible standard, not a rigid one. The evidence, viewed in the light most favorable to the People, established that the structure was a fully furnished residence with working utilities that was in fact occupied by the decedent just three days prior to the burglary. A valid line of reasoning supports the jury's conclusion that the house was 'usually occupied.' The court rejected creating a bright-line rule that death extinguishes a building's status as a dwelling, as this would incentivize burglaries of the recently deceased and ignore the potential for harm to grieving friends and relatives who might be on the premises.
Analysis:
This decision clarifies that the 'dwelling' element of second-degree burglary in New York is determined by a flexible, fact-sensitive inquiry rather than a rigid rule based on an occupant's life status. It broadens the protective purpose of the statute, which aims to prevent violent encounters, by recognizing that individuals other than the resident may be present in a home shortly after a death. The ruling establishes that a building's character as a residence, its recent use, and its suitability for habitation are key factors, preventing defendants from claiming a technicality to reduce the severity of their crime when they target the homes of the recently deceased.
