People v. Murray
278 A.D.2d 898, 2000 N.Y. App. Div. LEXIS 13705, 718 N.Y.S.2d 554 (2000)
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Rule of Law:
For a building to be considered a 'dwelling' under New York Penal Law for the purposes of a second-degree burglary conviction, it must be 'usually occupied by a person lodging therein at night.' A residential building that is entirely vacant, with no tenants and a non-resident owner who does not intend to return, does not qualify as a dwelling, even if it is structurally adapted for occupancy.
Facts:
- The building at issue was a two-family rental unit in Syracuse owned by a landlord who lived elsewhere.
- The upstairs apartment had been vacant for several months prior to the incident.
- The downstairs apartment had been boarded up by the landlord several weeks earlier to keep out tenants who were running an illegal gambling operation.
- Defendant, who was homeless, knew the building was boarded up and believed it to be abandoned.
- Defendant removed plywood from a basement window to enter the building because he was cold and needed a place to sleep.
- Police found Defendant hiding in a closet in the downstairs apartment.
- Defendant admitted to taking a deck of playing cards and an envelope of change from the kitchen counter, telling police he hoped to find food.
Procedural Posture:
- Defendant was convicted of burglary in the second degree following a jury trial in the Supreme Court, Onondaga County (a trial court).
- Defendant appealed the judgment to the Appellate Division of the Supreme Court, Fourth Judicial Department (an intermediate appellate court).
- On appeal, defendant (as appellant) argued, among other things, that the evidence presented at trial was legally insufficient to support his conviction.
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Issue:
Does an unoccupied, unrented two-family residential building qualify as a 'dwelling' under New York Penal Law § 140.00(3) for the purpose of a second-degree burglary conviction, when the owner lives elsewhere and the building had been vacant for weeks or months?
Opinions:
Majority - Per Curiam
No. The evidence is legally insufficient to establish that the building was a 'dwelling.' A dwelling is defined as a building 'usually occupied by a person lodging therein at night.' While a dwelling does not lose its character as such merely because an occupant is temporarily absent, this case is distinguishable. Applying the three-factor test from People v. Quattlebaum, the court found that although the structure was adapted for occupancy and a person could have stayed there overnight, the critical element of occupancy was missing. There was no occupant, temporary or otherwise; the owner lived elsewhere and neither apartment was rented. The purpose of the enhanced penalty for burglarizing a dwelling is to prevent the 'midnight terror' and danger to human life that arises from confronting a burglar in one's home, a risk not present in this vacant building.
Analysis:
This decision clarifies the 'dwelling' element of second-degree burglary in New York by distinguishing between a temporary absence of an occupant and a complete vacancy. It establishes that a building's functional status as a home is paramount, not merely its physical character as a residential structure. The ruling narrows the scope of second-degree burglary, making it more difficult for prosecutors to secure convictions for breaking into abandoned or unrented residential properties. It reinforces the underlying statutory purpose, which is to provide enhanced protection for the safety and security of people in their homes, not to protect vacant property.
