People v. Sheirod
510 N.Y.S.2d 945, 124 A.D.2d 14, 1987 N.Y. App. Div. LEXIS 40069 (1987)
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Rule of Law:
A residence that is temporarily unoccupied for an extended period, such as one year, still qualifies as a 'dwelling' for the purposes of a second-degree burglary charge, provided the structure remains adapted for occupancy and the owners intend to return.
Facts:
- In June 1982, Stephen Hassall and his family moved from their home in Chili, New York, to Colorado for Hassall's one-year work assignment.
- The family left their Chili residence completely furnished with all utilities remaining operable.
- The Hassalls hired neighbors to check the house daily for any issues like break-ins or weather damage.
- On June 20, 1983, approximately one year after the Hassalls left, an alarm at the residence was triggered.
- A neighbor observed a man at the home, noted the license plate of his car, and saw him drive away.
- An investigation revealed that the garage and kitchen doors had been forced open and personal belongings were disturbed, though apparently nothing was stolen.
- At the time of the break-in, the Hassall family had left Colorado and were en route back to their New York home, returning approximately two weeks later.
Procedural Posture:
- A neighbor identified the defendant in a series of three photographic arrays presented by law enforcement.
- The defendant's motion to suppress the identification evidence was denied by the trial court, which found the procedures were not overly suggestive.
- A jury in the trial court convicted the defendant of burglary in the second degree, attempted petit larceny, and criminal mischief in the fourth degree.
- The defendant appealed the conviction to the intermediate appellate court, arguing that the trial court erred by refusing to instruct the jury on the lesser included offenses of third-degree burglary and criminal trespass, which do not require the building to be a dwelling.
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Issue:
Does a fully furnished and maintained residence, which has been unoccupied for one year while its owners were on a temporary work assignment, constitute a 'dwelling' under New York Penal Law § 140.00(3)?
Opinions:
Majority - Balio, J.
Yes. A residence unoccupied for a year can still be considered a 'dwelling' if the absence is temporary. The court determined the absence was temporary because the Hassall family intended to return and the residence remained continuously adapted for human occupation. The 'usually occupied' element of a dwelling under Penal Law § 140.00 (3) does not require actual physical presence at the time of the burglary. The court applied a multi-factor analysis, considering the nature of the structure, the owner's intent to return, and whether the structure could have been occupied overnight. Here, the house was a long-term family residence, fully furnished with utilities, and the Hassalls demonstrated a clear intent to return by shipping their belongings there and being en route at the time of the crime. Therefore, the evidence only supported the charge of burglary of a dwelling, and the trial court was correct not to instruct the jury on the lesser offenses related to a non-dwelling building.
Analysis:
This decision clarifies the 'usually occupied' standard for the definition of a 'dwelling' in New York's burglary statute. It establishes that the owner's intent to return and the habitability of the structure are more significant than the mere length of an absence. The case provides a flexible, fact-specific framework for determining a building's status, which is particularly relevant for cases involving seasonal homes, extended vacations, or temporary work relocations. This precedent allows prosecutors to pursue higher-degree burglary charges for breaking into such properties, reinforcing the legal principle of enhanced protection for places where people lodge.
