United States v. Eichman
756 F. Supp 143, 1991 WL 16714, 1991 U.S. Dist. LEXIS 1103 (1991)
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Rule of Law:
Under New York Penal Law § 140.20, the element of "entry" for the crime of burglary retains its common-law meaning, which requires a physical intrusion into the interior of a building by crossing the plane of its walls or roof. Merely being present on the exterior surface of a building, such as its roof, does not constitute an entry into the building.
Facts:
- On September 11, 1990, Shawn Eichman and Joseph Urgo went to the United States Armed Forces Recruiting Station in Times Square.
- They used a ladder to climb onto the roof of the one-story structure.
- Once on the roof, Eichman and Urgo poured motor oil over the roof's surface and onto the building's exterior signs.
- They then lowered the American flag flying over the building, doused it with lighter fluid, and set it on fire.
- Eichman and Urgo claimed their actions were a form of political protest against American policy in the Persian Gulf.
- New York City police officers arrested them while they were still on the roof of the building.
Procedural Posture:
- A grand jury indicted Shawn Eichman and Joseph Urgo in the United States District Court for the Southern District of New York.
- The indictment included a charge of burglary in the third degree under New York law, brought pursuant to the federal Assimilative Crimes Act.
- In a Bill of Particulars, the government stated it would prove the defendants entered upon the roof of the recruiting station, not that they entered within its four walls and beneath its roof.
- The defendants filed a motion to dismiss the burglary count of the indictment on the grounds that the government could not prove the element of "entry."
- The defendants also moved, in the alternative, to inspect the grand jury minutes.
- The government opposed the defendants' motions but requested that the district court issue a pre-trial ruling on how the jury would be instructed regarding the "entry" element of the burglary charge.
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Issue:
Does climbing onto the roof of a building, without penetrating its interior, constitute "entering... in a building" under New York Penal Law § 140.20 for the purpose of a third-degree burglary charge?
Opinions:
Majority - Sand, District Judge.
No. Climbing onto the roof of a building without penetrating its interior does not constitute "entering... in a building" for the purposes of New York's third-degree burglary statute. Because the New York Penal Law does not define "enter," the term retains its common-law meaning, which requires some physical intrusion, however slight, into the structure itself. The common-law offense of burglary was designed to protect the internal security of a building, and thus required a defendant to cross the external boundaries of the structure—the planes created by the walls and roof. The court distinguished the precedent of People v. King, where entry into a vestibule constituted entry into a building, because the vestibule was an enclosed space within the building's exterior walls. In this case, the defendants' actions were confined to the exterior surface of the roof. Furthermore, the rule of lenity dictates that criminal statutes must provide fair notice of prohibited conduct, and a reasonable person would not foresee that being on a roof would constitute the crime of burglary.
Analysis:
This decision clarifies the physical scope of the "entry" element for burglary under New York law, reinforcing the traditional, common-law understanding of the crime as an invasion of a structure's interior. It limits the ability of prosecutors to charge burglary for acts committed solely on the exterior of a building, such as on a roof or fire escape, without some penetration into the building itself. The opinion also serves as an important application of the rule of lenity, preventing the judicial expansion of criminal liability beyond what a statute's language and history can fairly support.
