The People, Respondent,v.Lionel McCray, Appellant.BriefN.Y.May 8, 2014APL-2013-00146 To be argued by SHERYL FELDMAN (20 Minutes Requested) OVER Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - LIONEL MCCRAY, Defendant-Appellant. B R I E F F O R R E S P O N D E N T CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 danyappeals@dany.nyc.gov ALAN GADLIN SHERYL FELDMAN ASSISTANT DISTRICT ATTORNEYS Of Counsel DECEMBER 13, 2013 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................................................................. ii INTRODUCTION................................................................................................................ 1 SUMMARY OF ARGUMENT ........................................................................................... 5 THE EVIDENCE AT TRIAL The People’s Case ....................................................................................................... 8 Defendant’s Case ...................................................................................................... 20 POINT I CONTRARY TO DEFENDANT’S UNPRESERVED CLAIMS, HE WAS PROPERLY CONVICTED OF TWO COUNTS OF SECOND-DEGREE BURGLARY ..................... 21 POINT II THE IMPOSITION OF CONSECUTIVE SENTENCES FOR TWO SEPARATE SECOND-DEGREE BURGLARIES WAS LAWFUL ................................................................. 47 CONCLUSION ................................................................................................................... 53 -ii- TABLE OF AUTHORITIES STATE CASES People v Abarrategui, 306 AD2d 20 (1st Dept 2003) lv denied 306 NY2d 617 (2003) ....................................................................................... 32 People v. Barney, 99 NY2d 367 (2003) .................................................................................. 32 People v Battles, 16 NY3d 54 (2010) ..................................................................................... 51 People v. Boothe, 16 NY3d 195 (2011) .................................................................................. 46 People v. Catone, 65 NY2d 1003 (1985) ............................................................................... 46 People v. Chestnut, 19 NY3d 606 (2012) .......................................................................... 29-30 People v. Cona, 49 NY2d 26 (1979) ...................................................................................... 31 People v Day, 73 NY2d 208 (1989) .................................................................................. 50-51 People v. Dwight, 189 AD2d 566 (1st Dept 2003), lv denied 81 NY2d 885 (1993) ..................................................................................... 5, 32 People v Felder, 2 AD3d 365 (1st Dept 2003), lv denied 2 NY3d 799 (2004) ........................................................................................... 49 People v Frazier, 16 NY3d 36 (2010) ............................................................................... 47-51 People v Gray, 86 NY2d 10 (1995) ........................................................................................ 28 People v. Hawkins, 11 NY3d 484 (2008) .................................................................. 23, 28-30 People v Ivory, 99 AD2d 154 (3d Dept 1984) ...................................................................... 45 People v James, 204 AD2d 180 (1st Dept 1994), lv denied 84 NY2d 827 (1994) ......................................................................................... 49 People v Johnson, 162 AD2d 267 (1st Dept 1990), lv denied 76 NY2d 894 (1990) ......................................................................................... 42 People v Laureano, 87 NY2d 640 (1996) ......................................................................... 47, 49 People v Lee, 92 NY2d 987 (1998) .................................................................................. 48, 50 -iii- People v Matarese, 57 AD2d 765 (1st Dept 1977) ............................................................... 52 People v McKnight, 16 NY3d 43 (2010) ................................................................................. 51 People v Napolitano, 282 AD2d 49 (1st Dept 2001), lv denied 96 NY2d 866 (2001) .................................................................................... 24-25 People v Norman, 85 NY2d 609 (1995) ................................................................................ 31 People v. Qualls, 55 NY2d 733 (1981) .................................................................................. 28 People v Quattlebaum, 91 NY2d at 747 ............................................................................ 32, 43 People v Quattlebaum, 91 NY2d 744 (1998) .......................................................... 5, 32, 41-44 People v. Robinson, 36 NY2d 224 (1975)............................................................................... 30 People v Rodriguez, 50 NY2d 553 (1980) .............................................................................. 27 People v Rohena, 186 AD2d 509 (1st Dept 1992), lv denied 81 NY2d 794 (1993) ......................................................................................... 42 People v Rosas, 8 NY3d 493 (2007) ....................................................................................... 50 People v. Russell, 71 NY2d 1016 (1988) ................................................................................ 23 People v. Smith, 144 AD2d 600 (2d Dept 1988) .................................................................. 49 People v Snyder, 241 NY 81 (1925) .................................................................................. 48, 50 Quinn v. People, 71 NY 561 (1878) ........................................................... 6, 33-36, 39-42, 44 STATE STATUTES CPL §470.15(6)(a) ............................................................................................................ 29-30 CPL §470.25(1) ..................................................................................................................... 30 CPL §470.35(1) ..................................................................................................................... 30 Penal Law §70.25(2) ............................................................................................................. 47 Penal Law §140.00(2) ............................................................. 5, 31-32, 40-41, 44, 49, 51-52 Penal Law §140.00(3) .................................................................................... 4, 31, 40, 41, 45 -iv- Penal Law §140.25 .................................................................................................... 44-45, 48 Penal Law §140.25(2) ......................................................................................................... 1, 3 Penal Law §155.30(1) ............................................................................................................. 3 Penal Law §165.45(1) ............................................................................................................. 3 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- LIONEL MCCRAY, Defendant-Appellant. BRIEF FOR RESPONDENT INTRODUCTION By permission of the Honorable Susan Phillips Read, defendant Lionel McCray appeals from a January 24, 2013 order of the Appellate Division, First Department, unanimously affirming a September 2, 2010 judgment of the Supreme Court, New York County (Patricia Nunez, J.). By that judgment, defendant was convicted, after a jury trial, of two counts of Burglary in the Second Degree (Penal Law § 140.25[2]), and sentenced, as a second felony offender, to consecutive seven and one-half year prison terms, to be followed by five years of post-release supervision. During a five-hour span that started on October 6, 2009, and ended on October 7, 2009, defendant burglarized two dwellings within a large building that housed the Hilton Times Square Hotel at 234 West 42nd Street in Manhattan. First, just before 11:00 p.m., defendant was caught on surveillance videotape unlawfully -2- entering the Hilton’s employee locker room. A Hilton cook found defendant standing in front of another employee’s locker, which had been pried open. When the cook confronted him, defendant fled. The cook reported the break-in. Concerned that defendant was still in the hotel, Hilton security manager, Frank Horniak, viewed surveillance videotapes to track defendant’s movements after he left the locker room. The tapes showed defendant entering emergency fire Stairway D, which connected the Hilton to other establishments in the building, including Madame Tussaud’s wax museum. Horniak isolated a clear picture of defendant’s face and contacted Andre Rainey, who was in charge of nighttime security for the base building. At about 1:30 a.m., a security camera inside Madam Tussaud’s caught defendant entering the 5th floor of the closed museum through a doorway leading to Stairway D. For over two hours, the museum’s cameras captured defendant rummaging through its various floors and removing electronic equipment, a box, and a hand truck from the museum via Stairway D. At about 4:00 a.m., Horniak and Rainey were standing outside when defendant left the building through Stairway D’s exit onto 41st Street. He was using the hand truck to carry two boxes of electronic equipment that he had stolen from Madame Tussaud’s. Both men recognized defendant from the photo that Horniak had created from the Hilton’s surveillance tape. Rainey followed defendant and flagged down a passing police car. Defendant was arrested in possession of the stolen property and -3- taken to the stationhouse, where he asked an officer for his blue sweatshirt, which was in one of the boxes. Defendant had been wearing that sweatshirt when he was caught on videotape. Defendant was charged by New York County Indictment Number 5145/2009, filed on October 20, 2009, with two counts of Burglary in the Second Degree (Penal Law § 140.25[2]), one count of Grand Larceny in the Fourth Degree (Penal Law § 155.30[1]), and one count of Criminal Possession of Stolen Property in the Fourth Degree (Penal Law § 165.45[1]). Defendant was released from custody, and subsequently indicted for burglarizing Madam Tussaud’s again on October 25, 2009, as well as a 12th floor office at 220 West 42nd Street, a building that was adjacent to the one at 234 West 42nd Street. Pursuant to the People’s pre-trial motions, the larceny and stolen property charges in the first indictment were dismissed, and the two indictments were consolidated. Suppression hearings were held before the Honorable Thomas Farber on July 29, 2010. Defendant’s jury trial commenced before the Honorable Patricia Nunez on August 2, 2010. At the conclusion of the presentation of the evidence, defendant made a general motion for a trial order of dismissal. Immediately after that motion was denied, the court held a charge conference; defendant requested no lesser included offenses with respect to the burglaries that occurred on October 6th and 7th. On August 6, 2010, the jury convicted defendant of those two counts of second- -4- degree burglary, but acquitted him of the two burglaries that occurred on October 25, 2009. On September 2, 2010, Justice Nunez sentenced defendant as indicated above. On appeal to the First Department, defendant claimed that he should have been convicted of third-degree burglaries because the trial evidence was legally insufficient to establish that the Hilton Hotel’s locker room and Madame Tussaud’s constituted “dwellings.” He also contended that it was unlawful to impose consecutive sentences for the two burglaries because they were both committed by the “single act” of entering the main building. The People responded that defendant’s challenges to his second-degree burglary convictions were unpreserved and meritless and that the imposition of consecutive sentences was lawful. In its January 24, 2013 order, the First Department did not address the preservation issue. Rather, it unanimously rejected defendant’s challenge to his second-degree burglary convictions on the merits (A3-4).1 The court found that both the hotel’s employee locker room and the museum located in the same building as the hotel constituted dwellings within the meaning of the burglary statutes (A3). As the court explained: A building is a dwelling if it is ‘usually occupied by a person lodging there at night.’ (Penal Law §140.00 [3]). Where, as here, ‘a building consists of two or more units separately secured or occupied, each unit shall be deemed both a separate building in itself and part of the main building.’ 1 All parenthetical references preceded by “A” are to defendant’s appendix. -5- (Penal Law §140.00[2]; see also People v Quattlebaum, 91 NY2d 744 [1998]). It is of no consequence that the employee locker room of the hotel was not used for residential purposes (see People v. Dwight, 189 AD2d 566 [1st Dept 1993], lv denied 81 NY2d 885 [1993]). Similarly, the museum, which was “under the same roof” as the hotel, is a dwelling irrespective of whether there was “internal communication” between the two (Quattlebaum, 91 NY2d at 747). (A4). Further, the court found, the imposition of consecutive sentences was lawful. As the court put it: Defendant committed two separate and distinct acts of burglary because his acts ‘impacted different victims, were separated by place and were temporally differentiated, though in part overlapping’ (People v Brown, 361, 364 [1992]). (A4). SUMMARY OF ARGUMENT Before this Court, defendant repeats the claims that he made to the Appellate Division. As will be demonstrated, defendant’s challenge to sufficiency of the evidence supporting his second-degree burglary convictions is unpreserved and baseless. Contrary to defendant’s claim, his pretrial and midtrial motions could not have alerted Justice Nunez to his specific appellate arguments. In fact, the arguments that he made during the course of those motions belie his appellate claim that neither the Hilton Hotel’s employee locker room nor Madam Tussaud’s were “dwellings” because they were “unconnected and severed” from the “residential” portion of the -6- hotel. After all, in those arguments defendant conceded that there was abundant evidence that the emergency stairwells that he used to get from one “building” to the other connected those buildings to the residential portion of the hotel. Instead, his theory was that no part of the entire building, except for the actual guest rooms, could be deemed a dwelling because the rest of the building was purportedly open to the public. Thus, defendant’s appellate claim that interconnectivity is the key to whether he burglarized dwellings is not reviewable by this Court. Defendant was right to acknowledge at trial that there was abundant evidence regarding interconnectedness. Multiple witnesses testified that the residential portion of the Hilton was internally connected to the non-residential floors below by a number of emergency fire stairwells including Stairways D and E. And, of course, surveillance cameras caught defendant using those stairways to get into the Hilton’s locker room and from the hotel to Madam Tussaud’s. Defendant’s misconception of the structure of the building dooms his claim, for it shows that even under his interpretation of the law, both the Hilton locker room and Madam Tussaud’s were “dwellings”. In fact, however, defendant’s view of the governing law is also incorrect. His focus on an internal connection between the premises in question and the residential floors of the Hilton relies on dicta in Quinn v. People, 71 N.Y. 561 (1878). But, Quinn’s dicta interpreted statutory language that has long since been eliminated from the burglary statutes. A simple reading of the current statutes shows that, because the -7- Hilton’s locker room, Madame Tussaud’s, and the guest rooms of the hotel were all under the same roof, the entire building and all of those separately secured units were dwellings. Thus, defendant’s focus on an internal connection between the residential and non-residential portions of the building is entirely misplaced. Notably, defendant’s challenge to the sufficiency of the evidence is even belied by his challenge to the lawfulness of his sentence. In that regard, defendant contends that the various portions of the main building were so connected that his entries into the Hilton locker room and Madam Tussaud’s constituted one burglary, requiring the imposition of concurrent sentences. But, again, defendant’s claim simply ignores the plain language of the burglary statutes. As the Appellate Division correctly recognized, defendant was charged with and convicted of unlawfully entering two separate “buildings” within the main building. Since the two burglaries were committed at different times, through separate and distinct acts against different victims, the imposition of consecutive sentences was entirely lawful. -8- THE EVIDENCE AT TRIAL The People’s Case2 In October, 2009, ANDRE RAINEY was in charge of nighttime security for the “entire building” located at 234 West 42nd Street in Manhattan (Rainey: A514, A534, A537, A539). The building was a large 45-story structure that abutted both 41st and 42nd Streets and took up half of that block between Seventh and Eighth Avenues (Horniak: A447, A475; Rainey: A514, A531; People’s exhibit 7 [Diagram of area]). The building housed the Hilton Times Square Hotel whose overnight security manager was FRANK HORNIAK. The hotel’s ground floor “lobby area,” where Hilton security officers were stationed, ran between its two entrances on 41st and 42nd Streets. The Hilton had a storage room and offices on the building’s second floor, and the remainder of the hotel occupied the building’s top 31 floors, starting with the main lobby on the 14th floor (Horniak: A444-47, A447, A453, A472, A474- 75, A497-98; Rainey: A562). 2 As noted, in addition to the two burglaries that occurred on October 6-7, 2009, defendant was charged with two burglaries that occurred on October 25, 2009 – another burglary of Madam Tussaud’s and a burglary of an office inside a completely different building whose address was 220 West 42nd Street. Since defendant was acquitted of the two burglaries that occurred on October 25, the trial testimony that pertains only to those events is not summarized in this brief. Defendant takes the same tack in his brief. However in Section B(2) of his summary of the People’s case, defendant mistakenly indicates that James Whitley, an employee of Madame Tussaud’s, encountered defendant in the museum on the morning of October 7 (see Defendant’s Brief at 11-12). In fact, Whitley’s encounter with defendant occurred on October 25th (see Whitley: A635-636). And his testimony, for the most part, pertained only to that burglary of the museum. -9- The building also housed a number of retail and entertainment establishments, including Madame Tussaud’s wax museum, which occupied ten floors below the 14th floor (Horniak: A445-48; Rainey: A514-15; KATHY BAGSHAW, Director of Operations for Madame Tussaud’s: A588, A591, A617; People’s Exhibits 10-11 [photographs]).3 Each of those establishments had their own entrances to the general public on 42nd Street. However, groups of establishments were internally connected by a number of shared emergency fire stairwells (Horniak: A448, A470-71, A474, A489, A511-12; Rainey: A514-15, A534-36, A538, A540-41, A543-45; Bagshaw: A618). For example, both the Hilton Hotel and Madame Tussaud’s shared emergency Stairway D, which was on the south side of the building, and ran from the ground floor up to the roof. Thus, someone in the hotel could enter stairway D and gain access to other parts of the building, including Madame Tussaud’s.4 And, of course, from stairway D, one could get from Madame Tussaud’s to the hotel’s upper floors, as well as its second floor offices and storage room (Horniak: A549, A470-74, A476-79; Rainey: A516, A544-45, A562; Bagshaw: A618). 3 Although it was clear from the trial evidence that the museum occupied 10 floors below the 14th floor, it was not clear which floors. The other establishments in the building were Applebee’s and Dave & Buster’s restaurants, a Ripley’s Believe it or Not attraction, a movie theater, Modell’s Sporting Goods, and Money Exchange (Horniak: A445-48; Rainey: A514-15; People’s Exhibits 10-11 [photographs]). 4 Dave and Buster’s restaurant and the movie theater were also connected to Stairwell D (Rainey: A544-45). Stairway J connected the Hilton to Dave and Buster’s, as well as to Applebee’s (Rainey: A541, A543). -10- The stairwells were open to the public only as a “means of egress” in emergencies. They were accessible through emergency doors inside the establishments that had push bars, allowing people to open them. To prevent people from gaining access to the establishments from the emergency stairwells, the doors inside the stairwells, as well as those on the ground floor, were kept locked and could only be opened with keys (Horniak: A477-78, A486, A490, A495-96, A511-12; Rainey: A516-17, A535-36, A564-65, A569-71). Like the Hilton, most of the other establishments in the building, including Madame Tussaud’s, had their own security teams. Nonetheless, all of the establishments in the base building, including the Hilton, had to notify the base building’s security about matters that affected the building, such as safety issues, fires, leaks and the use of loading docks (Rainey: A515-17, A537-39, A548-49). Security for the “base building” was responsible for securing emergency stairwell Stairway D, and ensuring that its exit onto 41st Street was kept locked (Horniak: A512-13, A540; Rainey: A543-45, A549, A561). As Rainey explained, if someone is in a “staircase they are not suppose[d] to be [in,] then I have to get involved.” However, Rainey could not enter the Hilton or Madam Tussaud’s from the stairwells because he did not have those keys (Rainey: A549, A564-65). Due to the interconnectivity of the establishments through the stairways, the Hilton had a “security concern” about “individuals coming from the other establishments into [the] hotel” (Horniak: A489). Thus, a motion detector had been -11- installed on the 14th floor of Stairway D, where the bulk of the hotel began. Moreover, there were surveillance cameras in the stairwell above the 14th floor. If someone passed the motion detector, they would trigger an alarm in the Hilton “security dispatch office,” where images captured by the surveillance cameras could be monitored (Horniak A479, A490-93). Because “you can get between a number of different venues in [the] building” through the shared emergency stairwells, Madam Tussaud’s also had concerns about people unlawfully entering the museum through those “fire exits.” Thus, they had an outside security firm that was responsible for checking all the emergency exit doors at the end of the day to make sure they were secure (Bagshaw: A618-19). On October 6, 2009, CHRISTOPHER MAINE, a Hilton cook, ended his shift at 9:30 p.m. (Maine: 237). Afterwards, Maine went to the employee locker room, located on the Hilton’s mezzanine level, between the 14th and 15th floors. When he left for the day, Maine’s locker was closed, secured, and in proper “working order” (Maine: A580-81). About an hour later, at around 10:30 p.m., HUMBERTO YEPEZ, another Hilton cook, ended his shift and went to the employee locker room (Yepez: A573-74). Yepez found defendant standing in front of, and facing, Maine’s locker, which was -12- open.5 When defendant turned to face him, Yepez did not recognize him. Moreover, knowing Maine, Yepez found it highly unusual that he would leave his locker open. Thus, he asked defendant, “What’s up man? Are you new here?” Defendant replied, “Yeah,” and then immediately left the locker room. Yepez knew “something [was] wrong,” so he alerted Hilton security. He described defendant as a young black man, wearing a blue sweater and a hat, weighing about 175 pounds and standing about 5’6” tall (Yepez: A574-78). Members of the hotel’s security staff went to the locker room to investigate (Horniak: A468, A481). They discovered that Maine’s locker had been vandalized, and that the lock had been broken (Horniak: A469, A481-82; People’s Exhibits 12-13 [pictures of Maine’s damaged locker]). Horniak then reviewed the surveillance videos of the area (Horniak: A469, A453-55, A457, A479-80, A484; People’s Exhibits 8, 9 [surveillance videos]). At about 10:22 p.m., a surveillance camera recorded a young black man, whom Yepez later identified as defendant, wearing, jeans, a dark t-shirt, and dark shoes, with a blue sweatshirt covering his head, entering the mezzanine-level of the Hilton from emergency Stairway E, which was on the east side of the building and ran from the top floor of the Hilton to its ground floor lobby. It was another 5 Yepez, who was “good with faces,” testified that he was “a hundred percent sure” that defendant was the man he encountered in the locker room (Yepez: A575-78). -13- means of egress in emergencies for those in the Hilton (Horniak: A453-54, A459, A477, A484, A486; Yepez: A576-77; People’s Exhibit 8). After defendant entered the mezzanine level from the stairwell, the camera caught him walking to a corridor that led to two locked storage areas and the employee locker room. Several minutes later, the camera captured Yepez approaching that corridor from another direction. Within a minute, defendant emerged from that corridor and returned to Stairway E. He was carrying his blue sweatshirt, leaving his face and blue Yankee cap visible. Yepez was able to recognize and identify defendant as the intruder who had been at Maine’s locker. Defendant was not an employee of the Hilton, and only employees had permission to be inside the locker room (Horniak: A444, A453-57, A461, A479-81, A485-86; Yepez: A576-77; People’s Exhibit 8). Concerned that defendant was still somewhere in the hotel, Horniak looked at more videotape in an effort to “track” defendant’s “movements” after he entered Stairway E.6 A surveillance camera caught defendant “walk[ing] across the entire conference room level” – on the 16th floor of the hotel – to get from Stairway E to Stairway D. Defendant then headed down Stairway D, which led to both Madame Tussaud’s and the street. Horniak lost track of defendant when he passed the last 6 Stairway E led to the Hilton’s ground floor lobby, where the security staff was located (Horniak: A486-87). -14- Hilton camera on the 14th floor at about 10:45 p.m. Consequently, he did not know whether defendant had left the building (Horniak: A457-59, A478-79, A483-84, A487, A491-92; People’s Exhibits 8 and 9).7 Horniak also wondered whether defendant was a worker from the “base building” who had entered the Hilton locker room unlawfully. Thus, Horniak found a clear picture of defendant’s face on the Hilton videotape and created a still photograph (Horniak: A449, A457-58, A484; People’s Exhibit 6 [video still of the intruder’s face]). He also alerted Rainey of the break-in (Horniak: A450, A457-61, A487; Rainey: A517-18). Meanwhile, by midnight, the security manager of Madam Tussaud’s had ensured that the floors of the museum had been cleared of “guests,” and the museum was officially closed to the public. At that point, even employees were barred from the museum unless they had received permission from Bagshaw, the Director of Operations, or JAMES WHITLEY, the facility’s manager. No one had received permission to be in the building after hours on October 6-7, 2009. With the museum closed, approximately 80 security cameras monitored the ten floors of the building occupied by the museum (Bagshaw: A589-93). Shortly before 1:30 a.m., a security camera caught defendant entering the 5th floor of the museum from the doorway leading to emergency Stairway D. Then, for 7 That night, the Hilton’s security dispatch office received an alarm, indicating that someone was on the 14th floor of Stairway D. When a security officer looked on the video monitor, the intruder was gone. The officer notified a colleague who was on patrol, but Horniak did not know whether the patrol officer inspected the stairwell (Horniak: A491-94). -15- over two hours, at least 11 cameras caught that intruder going through various areas of the museum’s 4th, 5th, 7th, 8th and 9th floors. Defendant looked the same as he appeared in the Hilton’s surveillance videotape, and he was wearing the exact same clothing -- jeans, black shoes, a blue hooded sweatshirt and a blue Yankee cap.8 Defendant was not a museum employee and he had no permission to be in the museum after hours (Yepez: A575-577; Bagshaw: A592-608, A628-32; People’s 8, 14- 15 [Hilton and Madam Tussaud’s Surveillance videos]; Exhibits 14-15]). The cameras also caught defendant in areas of the museum that were always closed to the public. For example, at about 1:45 a.m., a security camera caught him rummaging through a 4th floor storage area that had a sign on the door indicating that it was closed to the public. Then, at about 2:00 a.m., defendant was recorded rummaging through an 8th floor storage area that contained, among other things, electronics equipment and an “AV control room,” where televisions were stored. Later, at approximately 2:45 a.m., defendant was caught on camera going through desks in a private 7th floor office area. One of those desks belonged to MARIA ORIOL (Oriol: A585-87; Bagshaw: A599-606; People’s Exhibits 14 and 15). 8 As portions of the tapes were played for the jury, Bagshaw described what was shown and where defendant was located. She explained that the time stamps on the tapes were eight minutes behind real time (Bagshaw: A597). Although defendant seemed to be conscious of the surveillance cameras, towards the end of the videotape, he looked directly at a camera and his face was clearly shown. At times, defendant was wearing his blue sweatshirt with the hood up, and at other times, the hood was down and his Yankee cap was visible. At another point, his sweatshirt was off, exposing his dark tee shirt (People’s Exhibits 14-15). -16- After that, various cameras caught defendant moving museum property into Stairway D. For example, starting at about 3:00 a.m., cameras caught defendant pushing a large box across a 9th floor gallery and through a door. A camera on the other side of that door recorded defendant pushing the box through the emergency exit into Stairway D. About 20 minutes later, a camera caught defendant on the museum’s 5th floor, taking a hand truck and wheeling it toward the exit to Stairway D. About a half hour later, the 9th floor cameras caught him carrying electronic equipment under his arm as he followed the same path through the gallery to Stairway D. The last image of defendant showed him walking out of the museum through an emergency exit to Stairway D at approximately 3:49 a.m. (Bagshaw: A596, A601-02; People’s Exhibits 14-15). Shortly before 4:00 a.m., Horniak and Rainey met outside the Hilton’s 41st Street entrance. Horniak gave Rainey a copy of the surveillance photograph that he had made of defendant’s face. Following a brief conversation, the two separated (Horniak: A461, A466, A487, A494; Rainey: A517-18; People’s Exhibit 6 [Photograph]). Before they had gotten very far, both Rainey and Horniak spotted defendant coming out of Stairway D’s exit onto 41st Street, which was between the Hilton’s entrance and the 41st Street loading dock (Horniak: A461-62, A468, A495, -17- A503-06, A509; Rainey: A518-19; People’s Exhibit 9 [surveillance video]).9 Defendant was wearing a dark colored Yankee’s cap, jeans, and a black shirt, and was pushing a hand truck, which was loaded with two boxes that appeared to contain electronic equipment, including flat screen televisions (Horniak: A462, A467, A506- 07, A510; Rainey: A520, A528, A543, A550-52, A555; People’s Exhibit 9). Horniak and Rainey were immediately suspicious. No no one would be leaving the building through that door at that time of night, much less with a load of items on a hand truck. Normally, the freight elevator to the ground floor loading dock was used to bring heavy loads downstairs (Horniak: A508-09; Rainey: A520, A547, A549, A552-53; Bagshaw: A621). Moreover, as defendant walked past Horniak and “kept turning around and looking at [him] very suspiciously,” Horniak recognized that he was the man in the surveillance still (Horniak: A462-63, A506-07; People’s Exhibit 6). 9 Surveillance cameras outside the building captured defendant on 41st Street carrying the boxes on the hand truck. The camera also captured Rainey, but Horniak was out of view (Horniak: A464-67, A496-97, A502, A506-07; Rainey: A528-29; People’s exhibit 9 [surveillance video]). Horniak narrated what he was seeing on the videotape as it played for the jury. When defendant came into view at 4:08 a.m., Horniak said “Here comes the individual that I identif[ied] earlier in the men’s locker room.” He also testified that when he saw the man emerging from the Stairway D exit onto 41st Street, he recognized him to be the same person who appeared in the still photograph that he had made from the Hilton’s surveillance video (Horniak: A462, 125, A507; People’s Exhibit 6). However, Horniak was never asked at trial whether he recognized defendant to be that man. As noted, however, Yepez identified defendant in court as the stranger he encountered in the Hilton locker room, and he also identified defendant as that man in the Hilton’s surveillance videotape (Yepez: A575-77). -18- Horniak alerted Rainey, who recognized him as the man in the photograph, too (Horniak: A463, A507; Rainey: A551-52). Rainey followed defendant, while Horniak stayed by the hotel (Horniak: A563, A507; Rainey: A521). Rainey never lost sight of defendant as he pushed the hand truck on 41st Street to Eighth Avenue, and then headed north to 42nd Street. Defendant paused briefly to speak with a taxi driver, before crossing Ninth Avenue and continuing west on 42nd Street (Rainey: A521-24, A557). At that point, Rainey saw a passing police car on Ninth Avenue and flagged it down. Rainey identified himself to the officer and said that he believed that defendant had stolen property from the building. Rainey got in the police car and the officer drove around the block. When Rainey spotted defendant with the hand truck on Tenth Avenue and 42nd Street, he identified defendant as the person who had stolen the items from the building (Rainey: A524-27, A534-35, A557, A559). While the officer was trying to stop defendant, Officer JOHN GLADSTONE arrived at the scene in his patrol car. He noticed that defendant was pushing two boxes on a hand truck and that he stood about 5’ 10” inches tall, weighed about 190 pounds, and was wearing jeans, a dark t-shirt, and a Yankee cap. Gladstone got out of his car and assisted his fellow officer. Rainey identified himself to Gladstone as security for 234 West 42nd Street and told him what had occurred (Rainey: A525-27; Gladstone: A666-69, A675, A681-82, A684, A692). The officers arrested defendant and seized the hand truck and the boxes, which contained four flat screen televisions, -19- three flat screen computer monitors, a DVR player, a cellular phone, an i-Pod, and a blue hooded sweatshirt (Rainey: A525-28; Gladstone: A666-69, A681, A688, A690, A693-94).10 Gladstone drove over to the building and spoke to Horniak, who gave him a copy of the still photograph of defendant that he had made from the surveillance videotape. Gladstone also viewed the actual videotapes. Afterwards, Gladstone went to Midtown South precinct, where he vouchered and photographed the property recovered from defendant and processed his arrest. While Gladstone was doing that, defendant was in a cell. He asked Gladstone for his sweatshirt and specified that it was the blue one in the box (Gladstone: A668-78, A695; People’s Exhibits 5 [Photographs of Property] and 6 [Sweatshirt and Still Photo]). That morning, a Madam Tussaud’s representative from the “base building” informed Kathy Bagshaw of the break in. Bagshaw viewed the museum’s surveillance videotapes and “burned” the images of defendant that she saw on them. She also told the museum workers to check if anything was missing. The electronic equipment that Officer Gladstone recovered from defendant had been taken from the museum. The flat screen televisions had been stolen from the AV control room, and the door to 10 At trial, Rainey testified that due to the passage of time, he would no longer be able to recognize the man he saw exiting Stairway D onto 41st Street (Rainey: A526-27, A555). However, Rainey told the jury that he had identified that man to the police on 42nd Street and Tenth Avenue and that he was certain that the police arrested that man in his presence (Rainey: A525-27). Officer Gladstone identified defendant as the man he arrested in the presence of Rainey (Gladstone: A666, A679). -20- that room had been damaged (Bagshaw: A591-94, A599, A608-09, A615-17; Whitely: A625-31, A635; Gladstone: A688; People’s Exhibits 14-17 [surveillance videos] and 20-22 [photographs of the storage area, including damaged door]). Oriol had left her cellular phone in her locked desk drawer. When she arrived for work, she found that her drawer had been opened and that her phone was gone (Oriol: A584-85). The door to that office showed signs of tampering (Whitley: A634). Moreover, after the burglary, it was discovered that something was wrong with the 5th floor door inside Stairway D, allowing defendant to gain access to the museum (Bagley: A618).11 When Maine arrived at the Hilton that afternoon, he found his locker open and the lock broken. Maine had not given anyone permission to open his locker (Maine: A581). Defendant’s Case Defendant presented no evidence at trial. 11 Horniak did not inspect Stairway D’s doors after the break-in to see if there was any evidence of tampering (Horniak: A472, A474). Because Rainey was “busy” doing other things, he left it to the police to check the doors (Rainey: A545-46, A565). -21- POINT I CONTRARY TO DEFENDANT’S UNPRESERVED CLAIMS, HE WAS PROPERLY CONVICTED OF TWO COUNTS OF SECOND-DEGREE BURGLARY (Answering Defendant’s Brief, Points I and II). On appeal, defendant does not challenge the legal sufficiency of the evidence establishing that he burglarized both the Hilton Hotel’s employee locker room and Madame Tussaud’s (see Defendant’s Brief at 19). That is not surprising, given that he was caught on videotape committing these crimes. Indeed, not only did Yepez identify defendant as the stranger that he caught standing in front of Maine’s ransacked locker in the Hilton locker room, but surveillance cameras captured defendant entering and exiting that restricted area of the Hilton. Thus, the jurors could see for themselves that defendant was also the burglar of Madam Tussaud’s. Indeed, surveillance cameras tracked defendant exiting the hotel via emergency Stairway D, and then entering the closed museum through the doorway leading to that stairway. The cameras then followed defendant as he rummaged through the museum for more than two hours, and actually captured him stealing the hand truck and electronic equipment that he had in his possession when he was arrested after leaving the building via Stairway D. In short, overwhelming evidence established that defendant burglarized the Hilton’s locker room and then burglarized Madame Tussaud’s. Thus, defendant does not claim otherwise. Instead, defendant contends that he should have been convicted -22- of two counts of third-degree, rather than second-degree, burglary. As he sees it, because both of those buildings were “unconnected and severed” from the “residential” portion of the hotel, neither the Hilton locker room nor Madame Tussaud’s were “dwellings” (Defendant’s Brief at 27, 43-44; see generally Defendant’s Brief, Point II). As will be demonstrated, defendant’s appellate arguments are unpreserved and baseless. Indeed, as defendant conceded below, there was abundant evidence that the emergency stairwells that he used to get into the Hilton’s locker room and from the hotel to Madam Tussaud’s connected those buildings to the residential portion of the hotel. Not only does that concession leave his appellate claim unpreserved for this Court’s review, but it shows that it is factually baseless. Thus, his claim would fail even if he were correct that “internal communication” is the key to whether he burglarized dwellings. In fact, however, his claim is legally baseless too. A. Defendant failed to preserve his claims not only because he failed to lodge his objections in a procedurally appropriate manner, but also because he simply never made his specific current arguments at trial. To begin, as defendant concedes, at the close of the evidence, he moved for a trial order of dismissal solely on the basis that “the People have failed to put forth a prima facie case with respect to each and every element of the counts charged in the indictment” (Defendant’s Brief at 21-22). Of course, that “general motion” did not “specifically direct[]” the trial court to -23- defendant’s current legal sufficiency arguments, and thus they are unpreserved for this Court’s review. See Hawkins, 11 NY3d 484, 492-493 (2008). To make his claim to the contrary, defendant cobbles together select portions of arguments that he made before and during trial, and he contends that those arguments brought his current claims to the trial court’s attention (see Defendant’s Brief Point I at 18-26). But, as this Court made plain: To preserve for this Court’s review a challenge to the legal sufficiency of a conviction, a defendant must move for a trial order of dismissal, and the argument must be specifically directed at the error being urged. As we have repeatedly made clear – and underscore again – general motions simply do not create questions of law for this Court’s review. Hawkins, 11 NY3d at 492 (internal citations omitted). Thus, even if defendant had made his appellate arguments at some other point in the proceedings, his failure to include them in his trial order of dismissal motion would leave those arguments unpreserved for appellate review. Id; see People v. Russell, 71 N.Y.2d 1016, 1017 (1988) (“The purposes and requirements of the preservation rules are not satisfied by intertwining and piggy-backing distinct procedural steps of the criminal proceeding”). An examination of the particular motions defendant now relies upon to show that he “squarely put the trial court on notice” about his current challenges to the sufficiency of the trial evidence (Defendant’s Brief at 22), demonstrate why those applications did not suffice to preserve his present argument. First, defendant points to his pre-trial motion to dismiss “some of” the second-degree burglary counts on the -24- ground that the grand jury minutes were insufficient to show that the “commercial establishment[s] down below” the Hilton were dwellings (see A210-213). That motion could not have preserved his current claim, for Justice Nunez obviously was in no position to rule on the sufficiency of the trial evidence before the trial even began. See e.g. People v Napolitano, 282 AD2d 49, 53 (1st Dept 2001), lv denied 96 NY2d 866 (2001) (the defendant’s motion to dismiss the indictment based on the insufficiency of grand jury evidence did not preserve legal sufficiency argument regarding trial evidence). The deficiency in that motion was not just one of timing; it was also of substance. Defendant never suggested in that pre-trial motion that the Hilton’s locker room was not a dwelling. And he drew no distinction between the “residential” and the other components of the hotel. Rather, as he put it, the distinction was between “the Hilton, which is a dwelling,” and the commercial establishments “down below” it, which were not (A211-213). Thus, even if a pre-trial motion could preserve a challenge to the sufficiency of trial evidence, defendant’s appellate claim that the Hilton’s locker room was not a dwelling would still be unpreserved for review. Indeed, given that defendant’s dwelling argument was grounded in a completely different premise than the one that he presses on appeal, his pre-trial motion was not even sufficient to preserve his appellate complaint about Madam Tussaud’s. In that motion, defendant claimed that commercial establishments that are attached to dwellings become dwellings only if they are “not open to the public” (A211-213). He argued that, in this “unique complex,” there was “restricted access” to the Hilton, but -25- the commercial establishments below the Hilton were all “open to the public.” Thus, he contended, unlike the Hilton, Madam Tussaud’s was not a dwelling (id.). The prosecutor responded that defendant’s “open to the public” argument was factually and legally incorrect, and the court agreed (A214-215). Notably, defendant has completely abandoned his “open to the public” argument on appeal (Defendant’s Brief at 22-23). But he did not abandon it at trial. Rather, it remained the linchpin of his argument when he renewed his motion to dismiss the second-degree burglary counts (see Defendant’s Brief at 20-22; see also A652-653). Since defendant made that motion prior to the close of the evidence, the court suggested that defendant “wait until the end of the People’s case,” because it had “no idea what the additional testimony might be” (A651). Counsel said that he was just trying to give the court “foresight,” so that it could think about his arguments prior to the close of the case (A651). When the court allowed him to proceed, counsel reiterated that the “key issue” that the court had to decide in determining whether to dismiss the second-degree burglary counts was whether defendant entered “areas” that were “closed or open to the public” (A652-653). Obviously assuming that defendant was still referring only to the Madam Tussaud’s counts, the court pointed out that the museum was not open to the public when he allegedly was in there. Counsel countered that “[t]he time is not an issue” because the trial evidence showed that the entire building, including the residential area of the Hilton, was open to the public “24 hours a day.” As defendant saw it, -26- there was testimony that both the lobby of the Hilton and Stairway D were open to the public, and that the doors inside Stairway D were not locked. Thus, a person could lawfully “get to [S]tairway D from the lobby of the Hilton,” and then “essentially make [their] way through out [sic] that whole complex” at “any time.” Defendant claimed that, since that stairway connected and “comingled” all of the areas in the building by allowing a person to travel from “one establishment to another” and “from one floor to another,” including the hotel’s residential floors, it was not possible to commit a second-degree burglary anywhere in the entire building at 234 West 42nd Street, except in the actual guest rooms (A653-54). Of course, that argument is the complete opposite of the one that defendant voices on appeal. As noted, defendant has abandoned his “open to the public” argument -- which he defined below as the “key” to his motion to dismiss the second- degree burglary counts (A652-53). Now, he concedes that the trial evidence showed that both Madame Tussaud’s and the Hilton’s locker room were closed to public. He instead claims that those two “buildings” were not “dwellings” because they were “severed from” and “not so connected” to the “residential floors” of the Hilton (Defendant’s Brief at 27, 45-46). But that claim is completely at odds with his concession that the trial evidence showed that Stairway D “comingled” and connected the residential floors of the Hilton with all of the other floors and establishments in the building, including Madam Tussaud’s. -27- To be sure, defendant claimed that he did not burglarize dwellings. But the only argument that he made in furtherance of that claim was that the buildings that he burglarized were open to the public. Thus, that was the only argument that the court addressed. Justice Nunez repeatedly observed that defendant’s motion to dismiss the second-degree burglary counts was based on nothing more than his misapprehension that the trial evidence showed that the entire building, including Stairway D, the Hilton and Madam Tussaud’s, had been “open to the public” at the time of his entries (A653-54). Since defendant did not “really fairly depict[] what the testimony was,” and he was making his dismissal motion before the People had finished presenting their case, the court suggested that counsel review “the evidence” in that regard and “continue the argument” at the conclusion of the evidence (654). Defendant never did that. Instead, he simply made a general motion for a trial order of dismissal at the close of the evidence (A725). Immediately after the court denied that pro forma motion, it asked defendant whether he had “any requests to charge,” and he said that he did not (A725-26). The only fair inference to be drawn from that change in course was that defendant did not “continue the argument,” or request the lesser charge of third-degree burglary, because he had reviewed the trial testimony and realized that, as the judge said, his open to the public argument had no factual support. See People v Rodriguez, 50 NY2d 553, 557 (1980) (defendant “abandon[ed]” his claim where he withdrew it before the trial court could rule on the merits). -28- At any rate, on this record, defendant cannot fairly claim that his challenges below were “specifically directed at the error being urged,” or that the court “expressly decided the question raised on appeal” (Defendant’s Brief at 18). Defendant explicitly told the court that, in determining whether he burglarized dwellings, the only question that had to be decided was whether the testimony established that the areas that he entered were closed to the public (A652). Now, defendant does not dispute that the court was correct to answer that question affirmatively. Thus, he poses a completely different question – whether Madam Tussaud’s and the Hilton’s locker room were so severed from and unconnected to the residential portion of the hotel that they are not fairly considered dwellings. But, of course, Justice Nunez could not have imagined that defendant was basing his claim that he did not burglarize dwellings on a theory that was the complete opposite of his open to the public argument. Indeed, he had just told her that Stairway D “comingled” and connected the residential floors of the hotel with all the other floors and commercial establishments in the building. In short, since defendant did not bring his current dwelling theory to the court’s attention, it is beyond the scope of this Court’s review. See Hawkins, 11 NY3d at 492 (where defendant claimed that the People failed to prove that defendant acted with “depraved indifference,” he did not preserve legal question of whether he acted intentionally, rather than recklessly); People v Gray, 86 N.Y.2d 10, 19-21 (1995); see also People v. Qualls, 55 N.Y.2d 733, 734 (1981)(where “defendant’s objection at trial was -29- solely on the ground that the evidence constituted improper bolstering,” defendant’s appellate claims that “evidence constituted inadmissible hearsay” and its introduction violated his confrontation rights were unpreserved). Because defendant is now advancing a claim that is entirely different than the one he raised in the trial court, the People are not unfairly “pouncing” on his preservation argument to create an artificial “barrier” to a decision of his case “on the merits” (Defendant’s Brief at 24, 26). Rather, as this Court observed, requiring a defendant to “specif[y] the alleged infirmity helps to assure that legally insufficient charges will not be submitted for the jury’s consideration, and serves the overall interest in an efficient, effective justice system.” Hawkins, 11 NY3d at 492. And, it does not unfairly deprive a defendant of any right to appellate review. Id. at 492-493. Defendant was permitted to receive a decision of his case on the merits from the “intermediate appellate court” that is vested with the power to review not just “law questions,” but also “fact issues,” in “the interest of justice.” Id.; see CPL §470.15(6)(a) To receive further review, defendant was required to preserve his claim for this Court. Id . People v. Chestnut, 19 N.Y.3d 606 (2012), does not lead to a different conclusion (Defendant’s Brief at 22). In that appeal, the defendant was not challenging the legal sufficiency of the trial evidence supporting his conviction. He was claiming that the court should have granted his motion for severance of his joint trial – a claim that he made at least nine times throughout the course of the proceedings. Id. at 608-610. In -30- finding that those complaints preserved defendant’s appellate claim that joinder was improper, this Court did not disturb the ordinary rule that a general motion for a trial order of dismissal will not preserve a specific legal sufficiency claim. Rather, it simply concluded that defendant’s repeated arguments for severance sufficiently apprised the court of his appellate complaints. Id. That was not the case here; instead, on appeal, defendant is seeking to raise claims that are substantially different than, and indeed factually incompatible with, the one he presented to the trial court. In an attempt to show that his appellate challenges were properly preserved, defendant also contends that “by reaching the merits” of his complaint without any “reference to its discretionary powers,” the Appellate Division “obviously” agreed with him and rejected the “People’s claim of lack of preservation” (Defendant’s Brief at 22). But, the Appellate Division’s silence on the preservation issue cannot be fairly read that way. As even defendant recognizes (see Defendant’s Brief at 1-2, 22), unlike this Court, the Appellate Division has the power to consider the merits of unpreserved issues. Compare CPL §470.15(6)(a) with CPL §470.35(1); see also People v. Hawkins, 11 NY3d 484, 492-493 (2008); People v. Robinson, 36 N.Y.2d 224, 228-229 (1975). Moreover, because it unanimously affirmed the judgment, the court was not required to make reference to its “discretionary powers.” Rather, the court “need[ed] only [to] state such affirmance.” See CPL §470.25(1); compare with CPL§470.25(2). Thus, there is no basis for assuming from the Appellate Division’s decision that it found defendant’s appellate arguments properly preserved (Defendant’s Brief at 18). -31- In any event, even if it could be assumed that the Appellate Division found that defendant’s appellate claims had been preserved, that finding would in no way bind this Court. Rather, the correctness of that conclusion is itself an issue of law amenable to this Court’s review. See People v. Cona, 49 N.Y.2d 26, 34 (1979). For the reasons detailed above, this Court would still be obliged to find defendant’s claims unpreserved and would be barred from addressing them. B. Defendant would not be harmed by that outcome at all. As the Appellate Division correctly concluded, “legally sufficient evidence” supported defendant’s conviction of two counts of second degree burglary for his “entries into [the] hotel’s employee locker room and [the] museum located in the same building as the hotel” (A3). Clearly, there was “a valid line of reasoning” that “could lead a rational trier of fact” to that conclusion, particularly when “viewing the evidence in the light most favorable to the People,” as it must be on appeal. People v Norman, 85 NY2d 609, 620 (1995). Indeed, as the Appellate Division found, the jury properly concluded that “[e]ach location constituted a dwelling within the meaning of the burglary statute” (A3). Penal Law §140.00(3) defines a “dwelling” as a “building which is usually occupied by a person lodging therein at night.” Under Penal Law §140.00(2), building has “its ordinary meaning.” That statute also provides that, where “a building consists of two or more units separately secured or occupied, each unit shall be deemed both a -32- separate building in itself and a part of the main building.” Id. In determining whether a “building” is a dwelling, the question is whether it is “normal and ordinary” for the main building or one of its units to be “used as a place for overnight lodging.” People v. Barney, 99 N.Y.2d 367, 372 (2003); People v Quattlebaum, 91 NY2d at 748 (1998). Generally, “this determination will be a question of fact for the jury based on the particular situation before it.” Quattlebaum, 91 NY2d at 747. An application of those principles demonstrates that defendant burglarized dwellings. The “main building” at 234 West 42nd Street housed the Hilton Hotel. And, of course, a hotel is a “dwelling” for the purposes of the second-degree burglary statute. See e.g. People v Abarrategui, 306 AD2d 20, 21 (1st Dept 2003), lv denied 306 NY2d 617 (2003); People v Dwight, 189 AD2d 566, 567 (1st Dept 1993), lv denied 81 NY2d 885 (1993). Indeed, it is “normal and ordinary” for a hotel to be “used as a place for overnight lodging.” Barney, 99 N.Y.2d at 372. Thus, under the plain language of Penal Law §§140.00(2) and (3), the “main building” at 234 West 42nd Street and all of its “separately secured or occupied parts” were dwellings, including the Hilton’s employee locker room and Madam Tussaud’s. Put another way, since the Hilton’s locker room and Madam Tussaud’s were “under the same roof” as the portion of the main building that was used for residences, they were dwellings too. People v Quattlebaum, 91 N.Y.2d at 747. -33- C. To make his claim to the contrary, defendant ignores the plain words of the statute and relies instead on dicta in Quinn v. People, 71 N.Y. at 561. As defendant sees it, because Madam Tussaud’s and the Hilton locker room were in a large building, Quinn required that they be joined to the residential portion of the hotel by an internal connection in order to be considered dwellings (Defendant’s Brief at 33-40, 47-53). That claim not only misconstrues Quinn, but also ignores that, as he insisted to the trial judge, there was an internal connection between the units at issue here. In 1878, when Quinn was decided, the first-degree burglary statute had a provision that “No building shall be deemed a dwelling-house, or any part of a dwelling-house, within the meaning of [that statute], unless the same be joined to, immediately connected with, and part of a dwelling-house.” Quinn, 71 N.Y. at 570. In Quinn, the defendant broke into a store on the lower level of a building that had residences on the upper levels. Quinn, 71 N.Y. at 565. There was “no internal communication” between the store and the residences on the upper floors, and the store was “used for business purposes only.” Id. Indeed, to get from the store to the residences, it was necessary to go outside into a fenced-in yard and then up stairs. Id. In that case, the defendant argued “that as there was no internal communication from that [store] to the rooms used for dwellings, and as that [store] was not necessary for the dwelling-rooms, there was not a breaking into a dwelling-house.” Id. This Court rejected that argument, because the store “was under the same roof and within the -34- same four walls” as the “dwelling-house.” Id. at 568, 573. It held that because the store was “a part” of “a whole building in other parts of which there were persons dwelling,” this made the store “a dwelling-house” too, even though the store was not “connected with the rest of the building by an internal, inclosed, or covered communication.” Quinn, 71 N.Y. at 573. In reaching that conclusion, this Court noted that it had found “no decision, that where the room or building entered, was under the same roof and within the same four walls, it was not held to be a part of the dwelling-house within the statutory or common-law definition of burglary.” Id. It pointed out that it could not even find such a case in England, where the burglary statute actually declared that “the building entered must be a part of the dwelling-house, and that it is not to be so deemed unless there shall be a communication between such building and the dwelling-house, either immediate, or by means of a covered and enclosed passage leading from one to the other.” Quinn, 71 N.Y. at 572. Thus, the Quinn Court concluded, in enacting the provision at issue, the revisers only meant to exclude completely separate “buildings,” i.e, “outhouses, isolated from the inhabited dwelling-house and forming no part thereof, and having no junction or connection therewith.” Id. at 570. And, the Court specifically held that the revisers “did not mean a room, or part of the same structure with the dwelling-house, within the same four outer walls, and beneath the same roof, though -35- there was no internal communication between the room entered and the room of the sleeper.” Id. at 561. After noting that the “judgment brought up for review should be affirmed,” this Court commented, in dicta, that “another rule” may apply “if different stores in a large building, some parts of which are used for sleeping apartments, are rented to different persons for purposes of trade or commerce, or mechanical pursuit, or manufacturing.” Quinn, 71 N.Y. at 573-574. As an example, it pointed to a store in “the Astor House in New York city” [sic], and noted, “if there be no internal communication, and the tenant does not sleep in it,” the store that is “part of a dwelling-house may be so severed from the rest of it” as “to be no longer a place in which burglary in the first degree can be committed.” Quinn, 71 N.Y. at 573-574. D. With Quinn understood, it is clear that it does not aid defendant in the least. Indeed, even if defendant committed his crimes in 1878, he would still be guilty of burglarizing dwellings. As Quinn’s actual holding makes plain, as long as a “room or building” entered was “under the same roof and within the same four walls” as the “dwelling rooms,” there had been an entry into a dwelling, even if the room or building entered was a commercial establishment that had no “internal communication” with the residential area. And, here, both the Hilton locker room and Madam Tussaud’s were under the same roof and within the same four walls as the residential portion of the Hilton. -36- Moreover, even if the dicta in Quinn had any force, the result would not change. First of all, that dicta does not even apply to the Hilton locker room. As Quinn made plain, its “Astor exception” pertained only to entries into “parts” of a large hotel that had been “rented to different persons for purposes of trade or commerce, or mechanical pursuit, or manufacturing.” Quinn, 71 N.Y. at 573-574. Even defendant admits that Quinn’s requirement of internal connection between a residential and non- residential portion of a building only applies to entries into “commercial or non- residential components of a far larger building, which are separately occupied and maintained by distinct entities” (Defendant’s Brief at 37-38 [emphasis added]). Since there can be no doubt that the Hilton’s employee locker room is a part of the Hilton itself, the Astor house exception has no application at all. Indeed, any notion that the Hilton was a dwelling, but its employee locker room was not, is contrary to Quinn and defies common sense. In any event, even if Quinn’s Astor House exception did apply to defendant’s entries into both the Hilton’s locker room and Madam Tussaud’s, defendant still would be guilty of burglarizing dwellings. Indeed, Quinn explicitly excluded large hotels that do in fact have “internal connections” between its non-residential parts and its “dwelling rooms.” Quinn, 71 N.Y. at 573-574. The reasoning behind this rule is plain. The burglary of any part of a building where people lodge overnight still evinces “recklessness and depravity, likely to cause alarm and to lead to personal violence and endanger human life.” Id. at 573. -37- Here, as defendant had no choice but to admit below, there was overwhelming proof that the emergency stairwells, and particularly Stairway D, connected and “comingled” the residential floors of the main building with all of its other floors, including the commercial floors (A652-654). Witness after witness testified that groups of establishments in the building were internally connected by a number of shared emergency fire stairwells. And, they specified that an intruder could gain access to both Madam Tussaud’s and the residential floors of the Hilton through Stairway D, which ran from the ground floor up to the roof (Horniak: A448, 459, 470-74, 476-79, 489, 511--12; Rainey: A514-16, 534-36, 538, 540-41, 543-45, 562; Bagshaw: A618). Indeed, because of the interconnectivity of establishments through the stairways, both the Hilton and Madam Tussaud’s had genuine concerns about intruders using them to unlawfully enter those “buildings.” Thus, they took precautionary measures to keep burglars like defendant out. Security from the base building was tasked with patrolling the stairways, and Madam Tussaud’s hired its own security firm to ensure that the doors to the Stairway D were locked at the end of the day. For its part, the Hilton was so concerned about the safety of its guests that it installed a motion detector on the 14th floor of Stairway D, where the bulk of the hotel began, and surveillance cameras had been installed on the remaining upper floors of that stairway, as well as in Stairway E (Horniak: A479, 489-93, 512-13, 540; Rainey: A543-45, 549, 561; Bagshaw: A618-19). -38- Yet, by navigating through those connecting stairways, defendant still managed to burglarize both a private area of the hotel and Madam Tussaud’s. Indeed, as the videotapes showed and the witnesses explained, defendant used those stairways strategically. One set of cameras captured him entering and exiting the Hilton’s locker room through emergency Stairway E that ran from the Hilton’s ground floor lobby up to the roof. Other cameras caught him walking across the 16th floor of the Hilton to get from Stairway E to Stairway D, and taking that down to the 14th floor, where he passed the motion detector and set off an alarm in the Hilton’s security office. By then, defendant had had already gotten past the Hilton’s cameras. But the Madam Tussaud’s cameras captured him entering the closed museum from the area of Stairway D’s door, which was discovered damaged the next day. During his two-hour foray through the museum, defendant could be seen moving stolen property out of the museum into Stairway D. And, of course, defendant was ultimately caught in possession of Madam Tussaud’s property because Rainey and Horniak had joined forces to track him down and caught him exiting the building onto 41st Street through the door to Stairway D (Horniak: A444, 453-463, 467-68, 478-81, 483-87, 491-95, 503-10; Rainey: 518-20, 528, 543, 550-52, 555; Yepez: A575-77; Bagshaw: 593-608, 601-02, 618, 628-32; People’s Exhibits 8, 9, 14, 15). Surely, that indisputable videotape evidence eliminated any doubt that the emergency stairways internally connected the hotel proper with other parts of the building. Indeed, the interconnectivity of the stairways was the reason that defendant -39- was able to commit his crimes. Yet, defendant centers his entire claim around Quinn and the notion that the lack of “internal communication” left the hotel so severed from the rest of the building that it was not possible for him to burglarize dwellings (Defendant’s Brief at 36). Obviously that claim is unmoored from reality. Plainly, the Astor House exception was not meant to apply to burglars in buildings like the one at 234 West 42nd Street. Indeed, unlike large modern structures, the Astor House had no emergency stairwells that allowed burglars to move throughout the main building and endanger the hotel’s guests.12 Thus, the stores that were under the same roof as the Astor House could be considered “so severed from the rest of [the hotel]” that the “terror in breaking open a dwelling house” was not present if a burglar unlawfully entered one of those commercial establishments. Quinn, 71 N.Y. 568, 574. That was simply not the case here, where there was indeed “internal communication” that allowed a burglar such as defendant to make his way from the commercial establishments to the “dwelling rooms” of the Hilton. Id. at 574. Thus, by its own terms, the Astor House exception simply does not apply to defendant. In other words, Quinn does not aid defendant in the least. The Quinn Court explicitly excluded from its dicta burglars, like defendant, who would roam through hotels and their attached businesses intending to commit crimes. Defendant’s claim 12 See http://en.wikipedia.org/wiki/Emergency_exit -40- to the contrary is based on nothing more than the erroneous premise that he could not endanger the hotel’s guests because the portions of the building that he entered were severed and unconnected from the guest rooms. Since that notion is belied by overwhelming proof, defendant’s claim that he did not burglarize dwellings is baseless. Indeed, defendant would be guilty of burglarizing dwellings even if he had committed his crimes in 1878. E. Because, as a matter of fact, there were internal connections inside 234 West 42nd Street, there is no need to join issue with defendant regarding the legal status of large buildings without internal connections. In reality, though, even were defendant right about the facts, he is wrong on the law. Of course, defendant burglarized dwellings in 2009, not 1878. Under current law it is even more obvious that the buildings in question constitute dwellings. That is because the dicta in Quinn upon which he relies was interpreting a statutory provision that was no longer in existence when defendant committed these crimes. Once again, in the current burglary statute, “dwelling” is defined simply as a “building which is usually occupied by a person lodging therein at night.” Penal Law §140.00(3). Moreover, the Legislature not only gave “building” “its ordinary meaning,” it additionally provided that “[w]here a building consists of two or more units separately secured or occupied, each unit shall be deemed both a separate building in itself and a part of the main building. Penal Law §140.00(2). -41- There is nothing in the current statute or its legislative history that would remotely suggest that the Legislature intended to keep the connection language that was present in the burglary statute when Quinn was decided in 1878 (see Defendant’s Brief at 47-52). On the contrary, when the Legislature enacted the current burglary statute in 1967, over 100 years after Quinn, it plainly decided that it no longer wanted the limitation that a building could be “deemed a dwelling-house, or any part of a dwelling-house” only if it was “joined to, immediately connected with, and part of a dwelling-house.” That explains why Penal Law §140.00(2) expressly states that even a “separately secured” unit is to be deemed part of the “main building.” And, of course, by eliminating the troublesome statutory language that was the subject of Quinn’s dicta, the Legislature also eliminated the significance of the dicta about the Astor House on which defendant exclusively relies to make his current “dwelling claim. Indeed, there is no language at all in the current burglary statute that would cause this Court to write that dicta today. Rather, the actual holding of Quinn fits comfortably with the current language of Penal Law §§140.00(2) and (3). Notably, in Quattlebaum, this Court confirmed that Quinn and Penal Law §§140.00 (2) and (3) should be read that way. 91 NY2d at 746-747. The Court began by pointing to the current statutory definitions of “dwelling” and “building.” Id. at 746. Then it noted that the statutory provision that the Quinn Court was interpreting was no longer “applicable,” i.e., that in order to be a “dwelling,” a “building” had to be “joined to, immediately connected with, and part of a dwelling house.” Id. To -42- illustrate that the actual holding in Quinn was the current state of the law, the Quattlebaum Court cited with approval other decisions that were in line with Quinn’s actual holding. 91 NY2d at 747 (citing People v Rohena, 186 AD2d 509, 511 [1st Dept 1992], lv denied 81 NY2d 794 [1993], which held that a non-occupied doctor’s office in an apartment building, was a dwelling; and People v Johnson, 162 AD2d 267, 268 [1st Dept 1990], lv denied 76 NY2d 894 [1990], which held that a music shop on the bottom of a residential building was a dwelling). Thus, defendant is in no position to fault the Appellate Division for relying on the plain words of the statute and Quattlebaum to support its conclusion that “separately secured” units that were “under the same roof” as the hotel were dwellings “irrespective of whether there was “internal communication” between the two (A4; see also Defendant’s Brief at 29-30, 40-47). Defendant contends that “the statute was not meant to undercut the ‘Astor House’ exception noted in Quinn since it does not evince a legislative intent to create a second-degree burglary out of the unlawful entry into the commercial component of a Manhattan high-rise that contains unconnected and/or severed residences on higher floors” (Defendant’s Brief at 47). But he is wrong. If the Legislature wanted the Astor House exception to apply to buildings without internal connections, all it had to do was keep the statutory language that prompted the Quinn court to create that exception in the first place. The fact that it did not -- and actually went further by -43- expressly providing that “separately secure” units are part of the main building” -- shows that it did not want to limit the definition of dwelling in that way. Defendant acknowledges that there are a wealth of cases that support the premise that, where a person unlawfully enters a separately secured unit that is within the same four outer walls and beneath the same room roof as a dwelling, that person has burglarized a dwelling, regardless of whether that person entered a unit that is residential or non-residential in nature (Defendant’s Brief at 30-32, 41-42, 44-45). He tries to distinguish them away by suggesting that the courts reached those decisions only because “the subject structure[s], in the main” were “essentially” dwellings (id. at 30-32, 41-42, 44-45). But that analysis is flawed. Indeed, Quattlebaum itself leaves no doubt about that. In Quattlebaum, the Court was deciding whether a “school building” was a dwelling for the purposes of the burglary statute. The defendant had burglarized a first-floor office of a seven-story school that had a bed in another office on the 5th floor. The Appellate Division had concluded that the 5th floor office was enough to convert the entire building into a dwelling within the second degree burglary statute. 91 N.Y.2d at 746. In determining that the Appellate Division was incorrect, this Court concluded that “[n]either the building as a whole nor the fifth floor office” had the customary indicia of a residence and its character or attributes.” Id. at 748-749 (emphasis added). If the Court would have found that the fifth floor office had the “character” of a dwelling, in that it was “usually occupied by a person lodging therein -44- at night,” it would have affirmed the lower court’s ruling, even though the main building was essentially a school. Id. at 748-749. In other words, Quattlebaum clearly shows that if one part of the “main building” is used as a dwelling, both the main building and all of its “separately secured parts” are dwellings, even if only one part of the main building is actually used for lodging at night. That is completely in line with the actual rule articulated in Quinn, not the dicta on which defendant relies. Indeed, defendant is simply wrong to suggest that this Court in Quattlebaum rejected the notion that the main building was a dwelling because “the subject structure, in the main” was a school rather a dwelling (Defendant’s Brief at 30). And, none of the New York cases that defendant points to are grounded in that premise either (see id. at 31-32, 44-45). Rather, they are all based on the plain words of the burglary statute. Defendant also misses the point when he claims that there is nothing in the legislative history of the second-degree burglary statute to suggest that the Legislature meant to include burglaries of multi-unit structures, like the one 234 West 42nd Street, or burglars like him (Defendant’s Brief at 47-53). As the Assembly Rules Committee explained, the purpose of the 1967 amendment to Penal Law §140.00(2) was to cure an anomaly in the law. Under the old statute, if an intruder entered a unit inside a multi-unit building “solely to gain access to” another unit “wherein he intends to commit a crime,” that intruder would not be guilty of “any degree” of burglary. Memo of Assembly Rules Comm, Bill Jacket, L 1967, ch 791. After all, a person -45- commits a burglary only if he intends to commit a crime in the building that he enters (See, e.g., Penal Law §140.25). And, under the old statute, if the intruder entered a particular unit solely to commit a crime somewhere else in the building, “the element of ‘intent to commit a crime therein’ would be “missing.” Id. The proposed amendment remedied this situation by making an entry into a separately secured unit both an entry into that unit and an entry into the whole building. Id. By doing so, it incorporated the character of the whole building and all of its units, thereby eliminating the intent issue, and still allowed a defendant to be prosecuted separately for his entry into each unit. Thus, as the Third Department correctly observed, the Legislature “clearly intended” by its 1967 amendment to Penal Law §140.00(3) “to expand the meaning of the term building and, correlatively, that of the term dwelling as to burglaries of multiunit structures.” People v Ivory, 99 AD2d 154, 156-57 (3d Dept 1984). Beyond that, the comments of the Assembly Rules committee show that defendant is precisely the sort of burglar that the amendment was meant to target. Indeed, if 234 West 42nd Street and all of its separately secured units were not classified as dwellings, that would produce the anomalous result of allowing defendant to roam through restricted areas of the Hilton, including its guest floors, and escape punishment for any burglary by claiming that his only intent was to gain access to the stairways so that he could commit a crime in a some non-residential part of the building. It would also allow defendant to unlawfully enter a business establishment -46- such as Madam Tussaud’s and claim that he was not guilty of a burglary, because he only intended to make his way to the Hilton to commit a crime. Those are precisely the anomalous results that the Legislature was trying to avoid. In the end, though, it makes no difference whether defendant believes that classifying the “mega-building” at 234 West 42nd and all of its separately secured units as dwellings produces unfair results when an unlawful entry is made into a commercial establishment, such as Madam Tussaud’s. That result is required by the statute. See, e.g., People v. Catone, 65 N.Y.2d 1003, 1005 (1985). Indeed, “it is well settled that courts are not to legislate under the guise of interpretation.” People v. Boothe, 16 N.Y.3d 195, 198 (2011) (internal quotations omitted). * * * In short, as the Appellate Division correctly concluded, defendant was guilty of burglarizing two dwellings. Defendant’s claims to the contrary are unpreserved and baseless. -47- POINT II THE IMPOSITION OF CONSECUTIVE SENTENCES FOR TWO SEPARATE SECOND-DEGREE BURGLARIES WAS LAWFUL (Answering Defendant’s Brief, Point II). To demonstrate that the imposition of consecutive sentences for the two burglaries was unlawful, defendant takes a position that is completely at odds with the one that he asserts to further his legal sufficiency claim. For this purpose, he no longer wants this Court to view the Hilton Hotel and Madam Tussaud’s as two separate and unconnected buildings that just happen to share an address. Instead, he urges this Court to view the actus reus of his two burglaries as the “single act” of entering a single building, i.e., 234 West 42nd Street (Defendant’s Brief at 58-59). As the Appellate Division correctly concluded, that claim has no basis in law or fact. Penal Law §70.25(2) provides that consecutive sentences are permissible for multiple offenses unless the crimes were “committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other.” As this Court has repeatedly reiterated, the People may establish the legality of consecutive sentences by showing that the “acts” committed by a defendant for the completion of each crime, i.e., the “actus reus,” were “separate and distinct.” People v Frazier, 16 NY3d 36, 39-40 (2010); People v Laureano, 87 NY2d 640, 643 (1996). -48- That was precisely the situation here. Indeed, defendant’s claim to the contrary is based on nothing more than the flawed premise that he, in effect, was convicted of two counts of burglary for entering or remaining unlawfully in “the entire building” at 234 West 42nd Street (see Defendant’s Brief at 27).13 Defendant was not convicted of a “single act” of burglarizing “a single building” as he claims. He was convicted of burglarizing two different buildings -- Madame Tussaud’s and the Hilton Hotel locker room -- two dwellings that were housed under the same roof at 234 West 42nd Street. Because these burglaries were committed through “separate and distinct” acts against totally separate victims, consecutive sentences were lawful. See Frazier, 16 NY3d at 40. After all, it is simply beyond dispute that the actus reus of second-degree burglary is completed once a defendant “enters or remains unlawfully” in a dwelling with the intent to commit a crime. Penal Law § 140.25; Frazier, 16 NY3d at 41; People v Lee, 92 NY2d 987, 989 (1998); People v Snyder, 241 NY 81, 84 (1925). And, of course, as fully discussed in Point I, supra, “[w]here a building consists of two or more units separately secured or occupied, each unit shall be deemed both a separate building in 13 To the extent that defendant is suggesting that the wording of the indictment actually charged him with two counts of burglary for entering the main building at 234 West 42nd Street at two different times, that claim is simply disingenuous (see Defendant’s Brief at 56-58). Indeed, the record makes plain that, even before he moved to dismiss the burglary counts in the indictment (see Point I, Section A), defendant fully understood that he was not charged with any counts of burglary for entering the “main building.” Rather, he knew that the grand jury had charged him with the first count for burglarizing the Hilton’s locker room on October 6, 2009, and with the second count for burglarizing Madam Tussaud’s on October 7 (A208-210; see also Indictment). -49- itself and a part of the main building.” Penal Law § 140.00(2). Thus, defendant’s unlawful entry into the Hilton Hotel locker room with the intent to commit a crime was a separate and distinct crime, involving separate and distinct acts, from his subsequent unlawful entry into a “separate building” – Madame Tussaud’s. Under those circumstances, the Appellate Division correctly found that the imposition of consecutive sentences was entirely lawful. See Frazier, 16 NY3d at 40; Laureano, 87 NY2d at 643. The fact that those two dwellings were both housed in the same “main building” and shared the same address does not affect that conclusion in the least. See e.g. People v Felder, 2 AD3d 365, 365 (1st Dept 2003), lv denied 2 N.Y.3d 799 (2004) (entry into two restricted areas of the same department store “constituted entry into two separate ‘buildings’ for purposes of the burglary statute”); People v James, 204 AD2d 180, 181 (1st Dept 1994), lv denied 84 N.Y.2d 827 (1994) (each individual office within an office building was a separate building for purposes of the burglary statute); People v. Smith, 144 AD2d 600, 601 (2d Dept 1988) (cotenants’ private bedroom was a separate “building” from the common areas of house under burglary statute). Indeed, it is well settled that when a defendant commits criminal acts that complete one crime, and then commits other acts that constitute a second crime, consecutive sentences may be imposed. As this Court put it, “[c]onsecutive sentence is available ‘if the Legislature has seen fit to provide that up to a particular point the acts of the defendant constitute one crime and that the acts of the defendant, committed thereafter, constitute a second crime and that each series of acts -50- [constitute] a separate crime.’” People v Day, 73 NY2d 208, 212 (1989) (quoting Snyder, 241 NY at 83-84); accord People v Rosas, 8 NY3d 493, 498 (2007). Here, defendant’s burglary of the Hilton Hotel locker room was completed once he entered that dwelling with the intent to commit a crime. See Frazier, 16 NY3d at 41; Lee, 92 NY2d at 989; Snyder, 241 NY at 84. His subsequent unlawful entry into Madame Tussaud’s with the intent to commit a crime was a “separate and distinct” burglary for which a consecutive sentence could be lawfully imposed. See Frazier, 16 NY3d at 40. Frazier leaves no doubt about that. In Frazier, this Court held that consecutive sentences were lawful for the burglary of an apartment and the subsequent theft committed inside the apartment. Frazier, 16 NY3d at 39. This Court recognized that the burglary was “completed when [the] defendant entered” the building “with the intent to commit a crime,” and thus the subsequent theft inside the apartment was committed through a separate and distinct criminal act that could properly be punished with a consecutive sentence. Id. at 41. If consecutive sentences were lawful in Frazier, surely they were lawful here. After all, defendant’s first burglary – that of the Hilton locker room – was completed the moment that defendant entered that locker room with the intent to commit a crime. After that, he committed a series of acts inside the locker room that could have resulted in consecutive sentences if he had been charged with vandalizing Maine’s locker and trying to steal its contents. Of course, defendant then left the locker room -51- when Yepez confronted him. And then, almost three hours later, defendant was caught on tape inside a “separate building,” Madame Tussaud’s. See Penal Law §140.00(2). His unlawful entry in that “building,” plainly constituted a separate criminal act punishable by a consecutive sentence. See Frazier, 16 NY3d at 41. As the Appellate Division observed, not only were defendant’s burglaries committed by separate acts at different times in different “buildings,” but they were committed against different victims. And, of course, it is well established that consecutive sentences are lawful when the two crimes are committed against two distinct victims. See People v McKnight, 16 NY3d 43, 49 (2010) (where defendant fired multiple shots striking two victims, sentences for the shooting of each victim were properly imposed consecutively); People v Battles, 16 NY3d 54, 59 (2010) (where defendant created a grave risk of death or serious physical injury to multiple victims by separate and distinct acts of dousing each of them with gasoline, consecutive sentences were proper). This is true even when the criminal acts were part of one larger criminal transaction. See McKnight, 16 NY3d at 49; Battles, 16 NY3d at 59. Indeed, “[t]he test is not whether the criminal intent is one and the same and inspiring the whole transaction, but whether separate acts have been committed with the requisite criminal intent.” Day, 73 NY2d 208, 212. Thus, even if defendant’s burglaries of the Hilton’s locker room and Madam Tussaud’s were part of a “single criminal scheme,” as defendant contends (see Defendant’s Brief at 56, 58), consecutive sentences would be lawful. -52- Defendant contends that “such a conclusion would be absurd and flies in the face of controlling law” (Defendant’s Brief at 57). But, if the law were as defendant proposes, a defendant could break into every room in the Hilton and then all of the attached businesses, and face only one punishment simply because all those “buildings” shared the address 234 West 42nd Street. Clearly that absurd result is legally incorrect. Indeed, by enacting Penal Law §140.00(2), the Legislature could not have made that more plain. Defendant’s reliance on People v Matarese, 57 AD2d 765, 765 (1st Dept 1977), for a contrary conclusion is misplaced (see Defendant’s Brief at 56-57). In Matarese, the defendant was convicted of two counts of burglary for entering an apartment through a window, exiting with a television set and then climbing back into the same window to get more property from the same apartment. 57 AD2d at 765. The First Department concluded that one count of burglary had to be dismissed because the “facts and the theory upon which the question of grand larceny was submitted to the jury suggest[ed] that this was one illegal scheme and the two entries were performed in pursuance of that scheme.” Id. In other words, the Court found that both burglary counts could not stand because they charged the same crime. See id. That was not the situation here. Defendant’s burglaries were committed by separate acts against separate victims, in separate buildings. Thus, defendant has never sought -- and never would have received -- the relief that the defendant in Matarese sought, i.e., the dismissal of one burglary count. -53- In short, the Appellate Division correctly found that the imposition of consecutive sentences for the two burglaries was lawful. CONCLUSION The order of the Appellate Division should be affirmed. Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County BY: SHERYL FELDMAN Assistant District Attorney ALAN GADLIN SHERYL FELDMAN Assistant District Attorneys Of Counsel December 13, 2013