People v. Lowe
284 A.D.2d 413, 2001 N.Y. App. Div. LEXIS 6134, 728 N.Y.S.2d 167 (2001)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A building under renovation that is unfurnished, has no current occupants, and is not practically suitable for habitation does not qualify as a 'dwelling' for the purposes of a second-degree burglary charge under New York Penal Law.
Facts:
- The owner purchased a building in 1996 with the intent to renovate it into a three-family residence and then sell it.
- The owner never resided in the building and had no intention of doing so.
- At the time of the incident, the building had new plumbing, a working boiler, and new kitchen, bathroom, and light fixtures.
- The defendant and his codefendant unlawfully entered the building and stole a boiler, damaging copper pipes in the process.
- A witness testified that despite the new installations, several sinks, toilets, and cabinets had been ripped out and were missing.
- The building was entirely unfurnished at the time of the entry.
- The building had not been used as a residence for a long time, though it was occasionally occupied by squatters.
Procedural Posture:
- The defendant was charged in an indictment with crimes including burglary in the second degree, which requires entry into a 'dwelling'.
- Following a trial in the Supreme Court, Queens County (a trial-level court), a jury found the defendant guilty on all charges.
- After the verdict, the trial court granted a motion to set aside the jury's verdict on the count of burglary in the second degree.
- The trial court determined that the evidence was legally insufficient to establish that the building was a 'dwelling' and dismissed that count of the indictment.
- The People (the prosecution) appealed the trial court's order to the Supreme Court, Appellate Division.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a building undergoing renovation, which is unfurnished and has no current residents or anyone intending to reside there, qualify as a 'dwelling' under New York Penal Law § 140.00 (3) for the purpose of sustaining a conviction for burglary in the second degree?
Opinions:
Majority - Bracken, P.J.
No. For a building to be considered a 'dwelling' under Penal Law § 140.00 (3), it must be a place 'usually occupied by a person lodging therein at night.' Applying the relevant factors, the court found the building was not a dwelling. At the time of the burglary, the building was entirely unfurnished, and no one regarded it as their residence, either permanently or temporarily. Although it had utilities and could have been made habitable, it was not suitable for civilized habitation in a practical sense at the time of the crime. This contrasts with cases like People v. Sheirod, where a temporarily unoccupied house was fully furnished and the owner intended to return, thus retaining its character as a dwelling.
Analysis:
This decision clarifies the statutory definition of a 'dwelling' for burglary charges, particularly in the context of buildings under renovation or in transition. The court emphasizes that mere structural habitability (e.g., having utilities) is insufficient; the building must have a present or recent connection to residential use. This holding provides a clearer standard for prosecutors, narrowing the scope of second-degree burglary and preventing its application to burglaries of what are effectively unoccupied construction sites, which would otherwise be charged as the lesser offense of third-degree burglary.
