The People, Respondent,v.Lionel McCray, Appellant.

Brief

N.Y.May 8, 2014

State of New York Court of Appeals BRIEF FOR DEFENDANT-APPELLANT DICK BAILEY SERVICE (212) 608-7666 (718) 522-4363 (516) 222-2470 (914) 682-0848 Fax: (718) 522-4024 1-800-531-2028 - Email: appeals@dickbailey.com -Website: www.dickbailey.com Appellate Division, First Department Supreme Court, New York County, Indictment No. 5145/09 THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- LIONEL MCCRAY, Defendant-Appellant. TO BE ARGUED BY: MARK M. BAKER COURT OF APPEALS NO. APL-2013-00146 TIME REQUESTED: 20 MINUTES STANLEY NEUSTADTER, ESQ. MARK M. BAKER, ESQ. Attorney for Defendant-Appellant CARDOZO APPEALS CLINIC 55 Fifth Avenue New York, New York 10003 (212) 790-0410 Date Completed: August 23, 2013 i TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................iv STATEMENT OF JURISDICTION AND REVIEWABILITY ..............................1 QUESTIONS INVOLVED ON APPEAL...............................................................2 PRELIMINARY STATEMENT.............................................................................3 STATEMENT OF THE CASE ...............................................................................4 I. Introduction ........................................................................................4 II. The People’s Case at Trial ..................................................................7 A. The Layout of 234 West 42nd Street ...............................................7 B. The Events of October 6-7, 2009 ...................................................9 1. Appellant is Observed in the Hilton Employees’ Locker Room and thereafter in Madame Tussaud’s in the late Hours of October 6-7, 2009 .....................................9 2. Appellant is Followed After Exiting the Building Early in the Morning of October 7, 2010 ...........................11 3. Appellant is Arrested .........................................................15 III. The Verdict and Sentencing ..............................................................15 IV. The Ruling of the Appellate Division................................................16 ii ARGUMENT POINT I THE ISSUE OF THE LEGAL SUFFICIENCY OF THE EVIDENCE SUPPORTING THE ELEMENT OF “DWELLING” IS REVIEWABLE BY THE COURT OF APPEALS SINCE IT WAS ADDRESSED BY THE TRIAL COURT ON THE MERITS, PURSUANT TO COUNSEL’S MOTION, AT AN APPROPRIATE POINT IN THE TRIAL...............................18 POINT II THE UNLAWFUL ENTRY INTO THE PUBLIC COMMERCIAL PORTION OF A MULTI-USE HIGH-RISE STRUCTURE IS NOT AN ENTRY INTO A “DWELLING” FOR PURPOSES OF AN AGGRAVATED CHARGE OF BURGLARY IN THE SECOND DEGREE WHERE THERE WAS NO EVIDENCE THAT APPELLANT INTRUDED INTO THE UNCONNECTED AND SEVERED RESIDENTIAL AREA OF THE BUILDING, WHICH, IN ANY EVENT, WAS NOT READILY ACCESSIBLE FROM THE COMMERCIAL PORTION.....................................27 A. “Building” versus “Dwellings” .........................................................27 B. In Quinn v. People, this Court Interpreted the Predecessor Burglary Statute to Preclude Aggravated Culpability for the Unlawful Entry into the Non-Residential Component of a larger Building, Also Containing a “Dwelling,” Where the Commercial Part Entered Was Not So Connected with the Residential Area So That an Entrance Into the Former Would Not Endanger An Occupant of the Latter ..........................................33 C. Treating this Continuing Crime as Two Second-Degree Burglaries is Inconsistent with Quinn and, Contrary to the Ruling Below, is not mandated by Quattlebaum ...............................40 D. Contrary to its Application by the Appellate Division, P.L. § 140.00(2) Does Not Support the Decision Below ............................47 iii POINT III THE IMPOSITION OF CONSECUTIVE SENTENCES WAS ILLEGAL UNDER P.L. § 70.25(2) WHERE APPELLANT’S CONTINUING CONDUCT WAS ALL PART OF A SINGLE CRIMINAL SCHEME ................54 CONCLUSION ....................................................................................................59 iv TABLE OF AUTHORITIES U.S. Supreme Court Cases Burks v. United States, 437 U.S. 1 (1978).............................................................18 Jackson v. Virginia, 443 U.S. 307 (1979)..............................................................18 Prince v. United States, 352 U.S. 322 (1957) ........................................................55 United States v. Neifert-White Co., 390 U.S. 228 (1968)......................................37 United States v. Santos, 553 U.S. 507 (2008)........................................................53 New York Cases Allen v. Strough, 301 A.D.2d 11 (2nd Dept. 2002) ........................................23 fn. 9 People v. Alonzo, 16 N.Y.3d 267 (2011) ..............................................................49 People v. Anderson, 66 N.Y.2d 529 (1985)...........................................................37 People v. Barney, 99 N.Y.2d 367 (2003) .......................................................passim People v. Beasley, 16 N.Y.3d 289 (2011) .............................................................26 People v. Brown, 80 N.Y.2d 361 (1992) .........................................................17, 58 People v. Bryant, 92 N.Y.2d 216 (1998) ...............................................................54 People v. Case, 42 N.Y.2d 98 (1977) ....................................................................53 People v. Chestnut, 19 N.Y.3d 606 (2012)..............................................22, 22 fn. 8 People v. Cohen, 204 A.D.2d 159 (1st Dept. 1994) ...............................................48 v People v. Corliss, 51 A.D.3d 79 (1st Dept. 2008)...................................................25 People v. Cummings, 16 N.Y.3d 784 (2011), cert denied, 132 S. Ct. 203 (2011)............................................................................................28 People v. Day, 73 N.Y.2d 208 (1989) .............................................................55, 57 People v. Dwight, 189 A.D.2d 566 (1st Dept.1993), lv. denied, 81 N.Y.2d 885, (1993) ..............................................................................17, 44, 45 People v. Felder, 2 A.D.3d 365 (2nd Dept 1988)....................................................49 People v. Frazier, 16 N.Y.3d 36 (2010).................................................................55 People v. George, 11 N.Y.3d 848 (2008) ..............................................................23 People v. Gray, 86 N.Y.2d 10 (1995)................................................18, 22 fn. 8, 26 People v. Green, 141 A.D.2d 760 (2nd Dept. 1988) .....................................30 fn. 11 People v. Harris, 19 A.D.3d 171 (1st Dept. 2005)..................................................31 People v. Haupt, 218 App. Div. 251 (3rd Dept. 1926)............................................50 People v. Hawkins, 11 N.Y.3d 484 (2008)................................................18, 23, 26 People v. Hines, 97 N.Y.2d 56 (2001)..................................................................18 People v. Hogue, 179 A.D.2d 1042 (4th Dept. 1992), lv denied, 79 N.Y.2d 1002 (1992) .........................................................................................56 People v. Ivory, 99 A.D.2d 154 (3rd Dept. 1984).............................30 fn. 11, 50, 51 People v. James, 204 A.D.2d 180 (1st Dept. 1994), lv. denied, 84 N.Y.2d 827 (1994) ...........................................................................................49 People v. Johnson, 162 A.D.2d 267 (1st Dept. 1990), lv denied, 76 N.Y.2d 894 (1990) ...............................................................................42, 44, 45 People v. Laureano, 87 N.Y.2d 640 (1996) ...............................................54, 55, 56 vi People v. Matarese, 57 A.D.2d 765 (1st Dept. 1977) .......................................56, 57 People v. McCarron, 114 A.D.2d 977 (2nd Dept. 1985).........................................32 People v. McCray, 102 A.D.3d 560 (1st Dept. 2013) ........................................6, 16 People v. Murray, 278 A.D.2d 898 (4th Dept. 2000)..............................................25 People v. Mullally, 38 Misc. 3d 1002 (Sup. Ct. Queens Co. 2013) .......................25 People v. Newkirk, 75 A.D.3d 853 (3rd Dept. 2010)..............................................25 People v. Niepoth, 55 A.D.2d 970 (3rd Dept. 1977).........................................31, 32 People v. Olsen, 34 N.Y.2d 349 (1974).................................................................23 People v. Ortiz, 78 AD3d 430 (1st Dept. 2010)......................................................31 People v. Paul, 204 A.D.2d 205 (1st Dept. 1994)...................................................31 People v. Patterson, 39 N.Y.2d 288 (1976) ...................................................22 fn. 8 People v. Pringle, 96 A.D.2d 873 (2nd Dept. 1983)................................................51 People v. Quattlebaum, 91 N.Y.2d 744 (1998)...............................................passim People v. Ramirez, 89 N.Y.2d 444 (1996).............................................................54 People v. Rohena, 186 A.D.2d 156 (1st Dept. 1992), lv denied, 81 N.Y.2d 794 (1993) .....................................................................................42, 45 People v. Rosas, 8 N.Y.3d 493 (2007) ............................................................55, 57 People v. Samms, 95 N.Y.2d 52 (2000) ..................................................1, 54 fn. 16 People v. Santana, 143 A.D.2d 207 (2nd Dept. 1988) ..................................30 fn. 11 People v. Shackett, 159 A.D.2d 963 (4th Dept 1990) .............................................31 People v. Sheirod, 124 A.D.2d 14 (4th Dept. 1987) ...............................................42 vii People v. Smith, 144 A.D.2d 600 (2nd Dept. 1988)................................................51 People v. Smith, 183 A.D.2d 653 (1st Dept. 1992) ................................................24 People v. Snyder, 241 N.Y. 81 (1925)...................................................................55 People v. Stevenson, 116 AD2d 756 (2nd Dept. 1986).................................30 fn. 11 People v. Torres, 162 A.D.2d 385 (1st Dept. 1990) ...............................................50 People v. Underwood, 52 N.Y.2d 882 (1981) .......................................................59 People v. Wright, 19 N.Y.3d 359 (2012).........................................................54, 59 Quinn v. People, 71 N.Y. 561 (1878).............................................................passim Other State Cases Arnold v. State, 7 Md. App. 1, 252 A.2d 878, 879 (Md. Ct. Spec. App. 1969) ....................................................................................41 Burgett v. State, 161 Ind. App. 157, 314 N.E.2d 799 (1974) .......................30 fn. 11 Jones v. State, 690 S.W.2d 318 (Tex App 1985) .........................................30 fn. 11 McKenzie v. State, 407 Md. 120, 962 A2d 998 (2008) .........................................40 People v. Coutu, 171 Cal. App. 3d 192, 217 Cal. Rptr. 191 (1985) .............30 fn. 11 People v. Germany, 41 Colo. App. 304, 586 P.2d 1006 (Colo. Ct. of Appeals, Div. III), revd, sub nom., on other grounds, Germany v. People, 198 Colo 337, 599 P.2d 904 (1979).......................................31 People v. Grover, 177 Cal. App. 3d 1182, 223 Cal. Rptr. 444 (Cal. Ct. App. 1986)..............................................................................................38 People v. Stephens, A111488, 2006 WL 2054357 (Cal. Ct. App. July 25, 2006) ......................................................................38 fn. 13 viii People v. Warwick, 135 Cal. App. 476, 27 P.2d 396 (Cal. Ct. App. 1933)..............................................................................38, 38 fn. 13 State v. Langford, 173 Wash. App. 1029 (Wash. Ct. App. 2013) ..........................32 State v. Clark, 89 Mo. 423, 1 S.W. 332 (1886) .....................................................41 State v. Haas, 13 Or. App. 368, 510 P.2d 852 (1973), aff’d, 267 Or. 489, 517 P.2d 671, rev’d on other grounds, Oregon v. Hass, 420 U.S. 714 (1975)..........................................................30 fn. 11 People v. Moreno, 158 Cal App 3d 109, 204 Cal. Rptr. 17 (1984) ..............30 fn. 11 State v. Murbach, 68 Wash. App. 509, 843 P.2d 551 (1993) .................................32 State v. Neal, 161 Wash. App. 111, 113, 249 P.3d 211, review denied, 172 Wash.2d 1011, 259 P.3d 1109 (2011) ............................................................32 State v. Scott, 169 N.J. 94, 776 A.2d 810 (2001) ..................................................40 White v. State, 630 S.W.2d 340 (Tex. 1982)...............................................30 fn. 11 Statutes C.P.L. § 210.20(1–a).......................................................................................24, 25 C.P.L. § 210.20(1)(b) ............................................................................................24 C.P.L. § 290.10(1) ................................................................................................24 C.P.L. § 290.10(1)(a) ......................................................................................24, 25 C.P.L. § 300.30(1) ................................................................................................25 C.P.L. § 300.50(1) ................................................................................................25 C.P.L. § 330.50(1) ................................................................................................25 ix C.P.L. § 450.90(1) ..................................................................................................1 C.P.L. § 470.05(2) ................................................................................................18 C.P.L. § 470.15(2) ................................................................................................25 P.L. § 15.00(1)......................................................................................................55 P.L. § 70.00(1)......................................................................................................28 P.L. § 70.00(4)......................................................................................................28 P.L. § 70.02(1)(b) .................................................................................................28 P.L. § 70.02(2)(a)..................................................................................................28 P.L. § 70.25(2)................................................................................ 2, 54, 55, 57, 58 P.L. § 100.40(2) ....................................................................................................57 P.L. § 140.00(2) .............................................................................................passim P.L. § 140.00(3) .............................................................................................passim P.L. § 140.05 ........................................................................................................25 P.L. § 140.20 ..................................................................................5 fn. 2, 27 fn. 10 P.L. § 140.25(2) ..........................................................................3, 5 fn. 2, 27 fn. 10 P.L. § 270.20 ........................................................................................................54 Former P.L. § 401.................................................................................................50 Former P.L. § 1938 ...............................................................................................55 Former 2 R.S. (Revised Statute), p. 668, § 16 .......................................................35 Former 2 R.S. (Revised Statute), p. 669, § 16 .......................................................36 x Rules 22 N.Y.C.R.R. § 500.13(a)......................................................................................1 Miscellaneous Black’s Law Dictionary (8th ed. 2004) ..................................................................55 L 1965, ch. 1030 ...................................................................................................50 L 1967, ch 791, § 14 .......................................................................................48, 51 1 Hale P. C., 557...................................................................................................37 Kel., 83, 84 ...........................................................................................................37 4 Black. Com., 225 ...............................................................................................37 East P. C. C., 15, § 20, p. 507 ...............................................................................37 N.Y.S. Legislative Annual, 1967 ..........................................................................48 http://en.wikipedia.org/wiki/Astor_House....................................................37 fn.12 http://www.trump.com/Real_Estate_Portfolio/New_York/ Trump_Tower/Trump_Tower.asp ..............................................................40 fn. 14 1 COURT OF APPEALS STATE OF NEW YORK ------------------------------------------------------------------- THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- LIONEL MCCRAY, Defendant-Appellant. ------------------------------------------------------------------- APPELLANT’S BRIEF STATEMENT OF JURISDICTION AND REVIEWABILITY Pursuant to 22 N.Y.C.R.R. § 500.13(a), the jurisdiction of the Court of Appeals to entertain this appeal is supported by C.P.L. § 450.90(1). As discussed more fully in Point I, reviewability of the issue raised in Point II of this appeal has been preserved, as reflected in the record at R. 210-212, 651- 654, and 7251. Reviewability of the issue raised in Point III is by operation of law. See People v. Samms, 95 N.Y.2d 52, 56 (2000). 1 Numerical references preceded by “R.” refer to the pagination of the original record on appeal as filed with this Court. 2 QUESTIONS INVOLVED ON APPEAL 1. Whether a motion for a trial order of dismissal following presentation of the essential part of the People's case, but prior to their formally resting, which, in its discretion, is entertained by the court on the merits, adequately preserves the issue of legal sufficiency of the evidence for appellate review, and whether such motion, by operation of law, implicitly requests as well a reduction of the charges to the greatest lesser included offense? 2. Whether the unlawful entry into the commercial and non-residential part of a larger high-rise building, also containing a residential component, necessarily results in culpability for the aggravated crime of Burglary in the Second Degree, where the evidence at trial demonstrates that such residential area is not readily accessible from the commercial component and, in fact, was never entered? 3. Whether P.L. § 70.25(2) precludes the imposition of consecutive sentences where the defendant’s continuing unlawful presence in a building, extending from before midnight on October 6, 2009 into the early hours of October 7th, was all part of a single criminal scheme? 3 PRELIMINARY STATEMENT This is an appeal by permission of Hon. Susan Phillips Read, in a certificate dated June 6, 2013, Granting Defendant-Appellant Lionel McCray (“Appellant”) leave to appeal from an order of the Appellate Division, First Department, entered on January 24, 2013, affirming a judgment of the Supreme Court, New York County (Nunez, J.) rendered on August 6, 2010, convicting appellant, following a jury trial, of two counts of Burglary in the Second Degree (P.L. § 140.25(2)) and sentencing him to two consecutive terms of imprisonment of 7½ years, amounting to an aggregate term of 15 years, to be followed by 5 years of post-release supervision. 4 STATEMENT OF THE CASE I. Introduction This case arises out of the burglary of a large high rise building at 234 West 42nd Street, in the Times Square area of Manhattan in New York City. The building houses several commercial establishments, in addition to a large hotel, and its design and structure impacts on the central issue now before this Court. Madame Tussaud’s Wax Museum is one of the several commercial establishments located within the building. Some of the other non-residential entities that share the same address are Ripley’s Believe it or Not, an AMC Movie Theater, a Dave & Buster’s restaurant, an Applebee’s restaurant, a Modell’s Sporting Goods, a Money Exchange, and, most significantly for purposes of this appeal, a Hilton Hotel. At about 10:30 p.m. on October 6, 2009, inside 234 West 42nd Street, a line cook walked into the employees’ locker room of the Hilton Hotel and observed an individual whom he did not recognize, but who was later identified as appellant. The cook informed the building’s security guards who reviewed surveillance videos. No further actions were taken. Six hours later, at about 4:30 a.m. on October 7th, Lionel McCray was arrested while walking westbound on 41st Street, pushing two boxes on a hand truck, after a security guard, who had reviewed surveillance tapes, observed an 5 individual exit the building through its 41st Street side and thereupon followed the intruder as he walked away, soon flagging a nearby police officer. At the time of appellant’s apprehension by another passing officer, the boxes were found to contain electronics equipment, including computer monitors and TV screens. Further viewing of the surveillance tapes from the various commercial establishments at 234 West 42nd Street revealed that appellant had also been present in Madame Tussaud’s after midnight of the same night, where televisions were later found to be missing. Appellant was charged with two counts of second-degree burglary, as amended (see R. 210; 359-360), for events occurring on October 6-7, 20092. The first count, as amended (R. 210), was premised on the theory that appellant had entered the building around 10:30 p.m. on October 6th, and alleged that appellant committed second-degree burglary inside 234 West 42nd Street on that date where the evidence showed he had entered the male employees’ locker room of the Hilton Hotel. Upon the theory that appellant had remained in the building for the next six hours or so, well after midnight, the second count, as amended (R. 210), alleged that appellant committed second-degree burglary inside the same building the 2 The indictment, as amended to correct the dates (R. 210), had been consolidated with one count of second-degree burglary (P.L. § 140.25(2)) and one count of third-degree burglary (P.L. § 140.20) for an incident that had occurred nearby on October 25-26, 2009 at 220 West 42nd Street. Because the jury acquitted defendant of those additional counts, the factual basis of those charges is not herein discussed 6 following day, on October 7th, where the evidence showed he had entered several floors of Madame Tussaud’s Wax Museum which were unconnected to the Hilton. The two counts pleaded only those separate dates and did not differentiate between the respective intrusions by appellant into different components of that one building. Thus, testimony and video surveillance supporting Count One established that an individual was present inside the Hilton employees’ locker room at 10:30 p.m., while further video surveillance supporting Count Two indicated that an individual was also present inside Madame Tussaud’s at 1:30 a.m., thereafter exiting the entire building sometime around 4:00 a.m. Following a jury trial, during which his attorney unsuccessfully protested the Second Degree Burglary charges on the ground, inter alia, that appellant had never been present in any residential part of the building which qualified as a “dwelling,” as defined in P.L. § 140.00(3), appellant was convicted of the two counts. He was thereafter sentenced to consecutive terms of 7½ years even though there was at most one entry into the building at 234 West 42nd Street, and hence, one extended criminal scheme. The judgment of conviction was thereupon upheld on appeal to the Appellate Division, First Department. See People v. McCray, 102 A.D.3d 560 (1st Dept. 2013), and leave to appeal was thereafter granted by Hon. Susan Phillips Read in a certificate dated June 6, 2013. 7 II. The People’s Case at Trial In the course of its case-in-chief concerning the building located at 234 W. 42nd Street, the People called nine witnesses, beginning at R. 443. They included Frank Horniak, the overnight security manager of the Hilton Times Square; Andre Rainey, a security guard and building planner employed by Forrest City Rattner who worked the overnight shift at 234 West 42nd Street; Humberto Yepez, a line cook with the Hilton Hotel; Chris Maine, also a cook at the Hilton; Maria Oriol, the HR benefit administrator at Madame Tussaud’s; Kathy Bagshaw, the Director of Operations of Madame Tussaud’s; James Curtis Whitely, Building and Projects Manager and Madame Tussaud’s; New York City Police Officer John Gladstone; and, New York City Detective Steven Stanley. A. The Layout of 234 West 42nd Street The high rise structure at 234 West 42nd Street in midtown Manhattan is a complex of separate and distinct establishments and occupies almost half the city block on 42nd Street between Seventh and Eighth Avenues (Horniak: R. 475). Included are a Dave & Buster’s restaurant, an Applebee’s restaurant, a Hilton Hotel, a Ripley’s Believe It or Not attraction, an AMC Movie Theater, a Modell’s, a Money Exchange, and Madame Tussaud’s Wax Museum (Horniak: R. 445, 446; Rainey: R. 514-515). There is also an entrance and exit on 41st Street (Horniak: R. 8 459-460, 470). Other than Hilton employees, workers at the other commercial establishments do not have access to the Hilton hotel (Horniak: R. 461). Madame Tussaud’s occupies ten floors of 234 West 42nd below the Hilton. The hotel, which begins on the 14th floor and rises 44 stories, maintains its own security and video surveillance system (Horniak: R. 470, 471, 472; Bagshaw: T. 591; 594-94, 274). The Hilton has 435 rooms plus staff, which includes about 200 employees (Horniak: R. 473). Stairway D is not open to the public at the point it reaches the hotel and is also locked from the outside on 41st Street at the ground level (Rainey: R. 477; Horniak: R. 495-96, 512). There is a motion detector outside Stairway D on the 14th floor where the hotel begins, and while locked from the outside because it is not used for access into the components of the building, it can be used for emergency exits (Horniak: R. 471, 477, 490, 511). Accordingly, a person walking from 41st Street cannot enter the hotel from Stairway D, or even exit therefrom, without sounding an alarm at the security dispatch office (Horniak: R. 471, 477, 490-91, 493). Likewise, one cannot enter the building through Stairway E, although it can also be used for exiting (Horniak: R. 486). After midnight, the fire doors leading from Stairwell D, other than the Fifth floor door which accesses Madame Tussaud’s, are expected to be locked 9 (Bagshaw: R. 617, 618). There were no reports that the door leading from Stairway D into the 14th floor had been tampered with or compromised on October 6, 2009 (Horniak: R. 472). The lobby of the Hilton, which is open to the public, is located on the 14th floor of the building (Horniak: R.445, 489, 490). Although, technically, they share an address, the base building below the 14th floor has “no involvement” with the Hilton which has a separate security and video surveillance system (R. 470, 477)3. The only establishments that can be accessed from Stairway D, even with a key, are Madam Tussaud’s, Dave and Buster’s and the AMC theatre, otherwise they are exit doors (Rainey: R. 564, 570-71). In order to get into the hotel, one has to go outside the building from the other establishments and then re-enter the Hilton (Rainey: R. 536). B. The Events of October 6-7, 2009 1) Appellant is Observed in the Hilton Employees’ Locker Room and thereafter in Madame Tussaud’s in the late Hours of October 6-7, 2009__________________________ On October 6, 2009, Humberto Yepez walked into the hotel employees’ locker room, between the 14th and 15th floors, at about 10:22 p.m., during his 3:00 3 Horniak, the overnight Hilton security manager, was unfamiliar with the building’s layout below the 14th floor and was unsure whether or not the first fourteen floors are open to the public (R. 470, 477) 10 p.m. to 10:30 p.m. shift and bumped into someone who was unfamiliar to him (Horniak: R. 453; Yepez: R. 573, 577). The locker room, between the 14th and 15th floors, was secure and reserved for employees only, and was thus separated from the hotel lobby and guest rooms by an additional stairway (Horniak: R. 453-54). In order to reach the locker rooms, therefore, employees needed to enter the “E” staircase from the 14th floor, which starts on the 45th floor roof, and then take a smaller staircase up to a mezzanine (“ML”) level between the 14th and 15th floors. Only the men’s locker room can be accessed from that level if a person goes into that area without an access key (Horniak: R. 454). When Yepez entered the locker room, a man was standing inside, facing the open locker of his co-worker, Chris Maine (Yepez: R. 575). The locker, which Maine had used about an hour earlier, at 9:30 p.m., was locked when he had left at that time. Upon Maine’s returning the next day, at about 2:15 p.m., the lock was found to have been vandalized (Horniak: R. 468, 469, 481, 482; Maine: R. 581). The man, whom Yepez identified as appellant, did not have anything in his hands, such as a screwdriver or a tool that could pry open a locker (Yepez: R. 576, 577). Yepez said to appellant, “What’s up, man? Are you new here?” to which appellant replied “Yeah” and kept on walking (Yepez: R. 574). The entire interaction took approximately fifteen seconds, but because he found it unusual, Yepez contacted security (Yepez: R. 576, 577)]. 11 When Frank Horniak arrived for work at 11:00 p.m., the worker on the prior shift informed him that someone had been inside the locker room and may have vandalized a locker (Horniak: R. 449). Horniak then reviewed the surveillance videos of the area near the locker room, playing the video of the “ML” mezzanine level. He noticed that at 10:21 p.m. an unknown individual was coming down staircase E and then walking up one level to the ML level where the men’s locker room is located (Horniak: R. 455). The man was followed by Yepez three minutes later at 10:24 p.m. (Herniak: R. 454; Yepez: R. 575). At 10:25 p.m., the intruder had exited the locker room, taking the small staircase down half a flight to the 14th floor (Horniak: R. 456-57). The man then took the larger “E” staircase up to the 16th floor conference room level, walked across that level to the D staircase, which leads to 41st Street from the 44th floor, where he exited the hotel perimeter (Horniak: R. 459, 460, 470). 2) Appellant is Followed After Exiting the Building Early in the Morning of October 7, 2010_______ At about 5:30 in the morning on October 7, 2009, as James Whitely, the building and project manager for Madame Tussaud’s was finishing his shift and leaving through the 7th floor door, he came face to face with someone whom he did not recognize (Whitely: R. 636). Whitely asked the man, who was an “African, black person,” dark complexion, wearing jeans, a red hat and carrying a red 12 backpack, and whom he identified in court as appellant, what he was doing (Whitely: R. 636-37, 639, 642, 643, 645)4. Appellant said he was with the cleaning company and there were others in the lobby, running up the eighth floor steps. When Whitely thereafter checked the lobby, he found it to be empty (Whitely: R. 637, 644). Meanwhile, Kathy Bagshaw, the Director of Operations at Madame Tussaud’s, received an email from the base building that an “incident” might have occurred inside the building the previous night (Bagshaw: R. 591). In response, Bagshaw asked employees of Madame Tussaud’s to check around their workstations for missing items (Bagshaw: R. 592). An employee, Maria Oriol, believed that a cell phone was missing from her desk (Bagshaw: R. 599, 617; Oriol: R. 584). Because, on October 6-7, 2009, no one had her permission to be on the premises after midnight, Bagshaw reviewed certain tapes from the eighty video surveillance cameras inside Madame Tussaud’s between those dates (Bagshaw: R. 590-91, 592). The videos revealed that, at various points from approximately 1:30- 3:30 a.m. on October 7th, an individual had been moving through the four floors of Madame Tussaud’s (Bagshaw: R. 594-599). The person appeared to walk through 4 Whitely also identified appellant at a precinct lineup (Whitely: R. 641; Stanley: R. 703- 11). 13 different areas of the museum, searching several floors, including the location where plasma TV’s were stored. Some of them were later found to be missing, as was a hand truck (Bagshaw: R. 597-98, 599, 602, 606, 616; Whitely: R. 626)5. The intruder then walked through the 9th floor with a box on the hand truck, ultimately exiting from a fire exit on the 5th floor (Bagshaw: R. 596, 601). Several hours later, at around 4:00 a.m. on October 7th, after Horniak gathered all the information and had made a photograph of the intruder, he met Andre Rainey at the 41st Street entrance (Horniak: R. 460, 463, __, 495, 510; Rainey: R. 517). As Rainey started walking eastward on 41st Street, the two observed someone coming out of Staircase D. Based on the person’s clothing, including the hat and jeans, Horniak immediately recognized him from the video observations and the snapshot he had made (Horniak: R. 462-63, 468, 478, 495, 503, 504; Rainey: R. 518, 547, 551)6. Rainey also believed that the individual was the same person, based on the individual’s Yankee hat (Rainey: R. 551-52, 555, 556; see also Bagshaw: R. 607, 610; Stanley: R. 716). No one would have been authorized to exit the building from that staircase at that time, as it was closed (Rainey: R. 547). 5 The missing items were later returned by police detectives following appellant’s arrest (Bagshaw: R. 608). 6 An alarm had sounded, indicating that someone was in the stairwell (Horniak: R. 493). 14 The man had a hand truck and two cardboard boxes containing electronic equipment and was walking westward on 41st Street toward the Port Authority, turning around to look at the men, and making a turn onto Eighth Avenue toward 42nd Street (Horniak: R. 462, 507; Rainey: R. 518, 520, 521-22, 552). Nothing, however, appeared to have been removed from the Hilton Hotel (Horniak: R. 484, 504). Horniak told Rainey to follow the intruder and the two men communicated on the radio as best they could (Horniak: R. 463, 507; Rainey: R. 521). Rainey thereupon followed the individual westbound, observing him stop and talk to a cab driver. The man soon continued westbound on 42nd Street toward Ninth Avenue, with Rainey still following him (Rainey: R. 523, 524). At Ninth Avenue and 42nd Street, Rainey stopped a police officer stating he had footage possibly showing that someone had stolen something from the building (Rainey: R. 524). Rainey got into the police vehicle and, after circling the area, he and the officer met the individual at 42nd Street and 10th Avenue, whom Rainey believed to be the same person with the hand truck who had exited the building (Rainey : R. 525, 526, 557)7. 7 At the time of trial, however, Rainey could not identify Defendant (Rainey: R. 526, 555). 15 3) Appellant is Arrested Police Officer John Gladstone was driving past appellant, Andre Rainey, and another police officer on the corner of 42nd Street and 10th Avenue (Gladstone: R. 666). After a conversation with Rainey, he handcuffed appellant, who had a hand truck, and placed him in the car (Rainey: R. 525; Gladstone: R. 667, 668, 681). He then checked the boxes on the street, which contained four flat screen TV’s, three computer monitors, a DVR player, a blue sweatshirt, a cell phone, and an iPod (Gladstone: R. 669). Subsequently, Gladstone drove Rainey back to 234 West 42nd where Gladstone viewed the security tapes of the locker room entrance, and interviewed Rainey and Horniak (Gladstone: R. 670). Gladstone then brought appellant to the police precinct where he vouchered the equipment, as well as the videos and photos he had monitored (Gladstone: R. 670-77). Appellant was then questioned by Gladstone and Detective Steven Stanley, who subsequently investigated the incident (Stanley: R. 700, 701). III. The Verdict and Sentencing Following the Jury’s verdict convicting appellant of both counts relating to 236 West 42nd Street (R. 815), appellant appeared for sentencing on September 2, 2010. Noting that appellant’s extensive record consisted of misdemeanors, the trial 16 court observed that “[h]e has graduated now to felony burglary” (R. 832). The court thereupon sentenced him to a determinate sentence of seven-and-a-half years on each count, to run consecutively. The result was an aggregate term of imprisonment of fifteen years, to be followed by a period of post-release supervision of five years (R. 833). IV. The Ruling of the Appellate Division On appeal, appellant argued that his convictions of Burglary in the Second Degree should be reduced to Burglary in the Third Degree, reasoning that he had not entered any “dwellings.” In any event, he maintained that the consecutive sentences should be modified to run concurrently. Ostensibly rejecting the People’s claim that the issue had not been preserved, the Appellate Division, addressing the merits of appellant’s argument, held that “[e]ach location constituted a dwelling within the meaning of the Burglary statute. A building is a dwelling if it is ‘usually occupied by a person lodging there at night’” People v. McCray, 102 A.D.3d 560 (1st Dept. 2013) (quoting Penal Law §§ 140.00(2) and (3)). According to the court, It is of no consequence that the employee locker room of the hotel was not used for residential purposes … Similarly, the museum, which was “under the same roof” as the hotel, is a 17 dwelling irrespective of whether there was “internal communication” between the two. 102 A.D.3d at 560 (citing People v. Dwight, 189 A.D.2d 566 (1st Dept.1993), lv. denied, 81 N.Y.2d 885, (1993); and, People v. Quattlebaum, 91 N.Y.2d 744, 747 (1998)). The Appellate Division, therefore, affirmed the judgment in an order entered on January 4, 2013. The lower court further held that the sentences were appropriately made to run consecutively. In the court’s view, “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[.]’” (quoting People v. Brown, 80 N.Y.2d 361, 364 (1992)). Permission to appeal having been granted by Hon. Susan Phillips Read, in a certificate dated June 6, 2013, this further appeal now follows. 18 ARGUMENT POINT I THE ISSUE OF THE LEGAL SUFFICIENCY OF THE EVIDENCE SUPPORTING THE ELEMENT OF “DWELLING” IS REVIEWABLE BY THE COURT OF APPEALS SINCE IT WAS ADDRESSED BY THE TRIAL COURT ON THE MERITS, PURSUANT TO COUNSEL’S MOTION, AT AN APPROPRIATE POINT IN THE TRIAL On the record before the Court there can be no serious dispute but that the issue raised herein, which goes to the legal sufficiency of the evidence supporting the charged crimes as a matter of due process, Jackson v. Virginia, 443 U.S. 307 (1979); Burks v. United States, 437 U.S. 1 (1978), was properly preserved. As will be shown, counsel’s challenges were “specifically directed at the error being urged.” People v. Hawkins, 11 N.Y.3d 484, 492 (2008) (quoting People v. Gray, 86 N.Y.2d 10, 19 (1995); and, People v. Hines, 97 N.Y.2d 56, 62 (2001)). Hence, “… in response to a protest by a party, the court expressly decided the question raised on appeal.” C.P.L. § 470.05(2). Accordingly, because “[t]he chief purpose of demanding notice through objection or motion in a trial court, as with any specific objection, is to bring the claim to the trial court's attention[,],” Gray, 86 N.Y.2d at 20, that objective was more than adequately satisfied. In a pretrial colloquy on the issue of whether the grand jury evidence had established the two counts of second-degree burglary, defense counsel — with leave of the court — moved to dismiss both counts on the ground that “the Second 19 Degree burglaries only apply to a dwelling and those areas that are not open to the public … and there was no way to get from these lobby areas, these areas that were open to the public into the Hilton Hotel, which is a dwelling, which is why he is being charged with the Second Degree Burglary” (R. 211). Counsel added that “someone shouldn’t be charged with burglary of a dwelling if they go in, if the entrance to one of these commercial establishments that may be three buildings away but technically somehow attached because of the design of all these buildings” (R. 212). Thus, while the evidence would show that the Hilton was attached, counsel specified that appellant was not alleged to have entered and taken anything from it, but only from the unconnected commercial floors. Responding, the prosecution argued, without citing any support, that the case law was “absolutely clear” (R. 214) that where a commercial establishment is in the same building as a residential apartment, the commercial establishment is also considered part of the residential building for purposes of Burglary in the Second Degree. According to the prosecutor: The case law in this area I submit is absolutely black and white. If the commercial establishment is within the confines of the exterior walls of the residential location, then the commercial establishment is, for purposes of Burglary in the Second Degree, considered residential … the case law is absolutely clear that Madame Tussaud’s is within the exterior walls of the Hilton and as such legally it is proper to charge it as a residence for purpose of Burglary in the Second Degree. 20 R. 214. Later, upon the close of testimony on Wednesday, August 4, 2010, the trial judge called a bench conference, explaining to counsel that the following day, a Thursday, would be a day off and that the trial would resume that Friday (R. 649). The judge stated that on Friday, she hoped to move to summations and deliberations after “some additional testimony,” indicating that she expected the trial to end that day (R. 649). At that point, defense counsel moved to “renew” his earlier motions to dismiss the second-degree burglary counts on the ground that the building is a unique complex due to the convergence of so many different establishments and access points (R. 651-52). Although the judge initially requested that defense counsel wait until the end of the People’s case on Friday before making the motion (R. 651), counsel replied that since all the evidence had been heard by then, he wished to make the motion immediately so as to avoid a time constraint (T. 308- 09). The judge then allowed counsel to make his motion, asking, “Anything you want to say?” (R. 652). Counsel thereupon moved for dismissal on the grounds that the testimony had established the building at 234 West 42nd Street to be one of the most unique complexes, probably in the country, in the world, in terms of the convergence of all of these businesses. And the unique way it is designed that there are all 21 these different access points; elevators, stairways and so on and so forth. R. 652. Disagreeing with this assessment, yet obviously grasping the essence of counsel’s argument and addressing its merits, the court observed: I don’t think it’s so unique. I believe I am thinking of the building over in Battery Park where the movie theater is, also a hotel, a little restaurant. I imagine it’s the same set up, you go in and out of the lobby. You can go to all the different areas from the lobby. There is [sic] a few stores there I don’t think it’s unique. Id. Following further colloquy on this issue (R. 652-54), with counsel adding that “the issue with respect to a Second Degree Burglary, is from my understanding of doing the research is that if there is a commercial establishment attached to that dwelling the key issue now becomes whether or not the areas [sic] closed or open to the public[]” (R. 652), the court finally stated: [Y]ou need to think about the evidence I’ll think about the evidence and go over it and we will continue this argument on Friday. R. 654; emphasis added. On Friday, at the close of the People’s case, defense counsel continued his argument for dismissal as per the judge’s instructions, stating: Your honor, at this time, I have a motion with respect to a directed verdict in my client’s favor as the People have failed to 22 put forth a prima facie case with respect to each and every element of the counts charged in the indictment. R. 725. The court then denied counsel’s motion (R. 725). As the Appellate Division obviously agreed by reaching the merits absent any reference to its discretionary powers, and notwithstanding the Peoples’ claim of lack of preservation, the issue presented is properly preserved. According to People v. Chestnut, 19 N.Y.3d 606, 615, n. 2 (2012), the preservation rule's “specific objection” requirement should not be applied in the overly technical way the dissent urges; nor should a party's adherence to this requirement focus on minutiae or emphasize form over substance.8 In our case, the concerns of both the majority and the dissent in Chestnut were more than satisfied. As the Appellate Division understood in addressing the merits, the constant discussion of this issue with the nisi prius court, including counsel’s specific request to “renew” his earlier argument regarding the lack of any entry into a dwelling (R. 211-12; R. 651), squarely put the trial court on notice as to the claimed deficiency in the second-degree burglary counts and the specific proof regarding the referenced “dwelling” element. This is so even if counsel 8 In dissent, Judge Read even noted that “[t]he chief purpose of demanding notice through objection or motion in a trial court, as with any specific objection, is to bring the claim to the trial court's attention,’ thus affording the judge an opportunity to rectify an error or oversight, thereby maintaining the integrity of the eventual jury verdict in the interests of finality” (citing People v. Gray, supra, and People v. Patterson, 39 N.Y.2d 288, 294–295 [1976]). People v. Chestnut, 19 N.Y.3d at 615 (Read, J. dissenting). On this record, as shown, that was clearly accomplished. 23 added arguments, not pursued on appeal, addressing what was “open to the public.” Surely, counsel’s motion was far more specific than was the motion interposed in People v. George, 11 N.Y.3d 848 (2008), on the element of depraved indifference, which this Court nevertheless approved in light of Hawkins, decided that same day. See Record of Transcript of Trial in People v. George at 1230 (“I would like to make a motion to dismiss specifically on the grounds that in the People's proof and prima facie case, that they failed to prove that the defendant in any way acted in a manner which was depraved, and therefore, the one major element of the charges is missing.”).9 The fact that the trial court in this case entertained counsel’s motion out of order simply does not undermine this abiding point. By asking counsel, “Anything you want to say?” (R. 652), the court certainly exercised its inherent discretion to alter the order of trial and thereby consider counsel’s argument. See People v. Olsen, 34 N.Y.2d 349, 353 (1974) (“The statutory framework however is not a rigid one and the common-law power of the trial court to alter the order of proof ‘in its discretion, (and) in furtherance of justice’ remains at least up to the time the case is submitted to the jury” (citations omitted)). 9 Although not part of its decision in George, the Court can take judicial notice of that record for purposes of this appeal. See Allen v. Strough, 301 A.D.2d 11, 18-19 (2nd Dept. 2002) (“In New York, courts may take judicial notice of a record in the same court of either the pending matter or of some other action … [citations omitted].”). 24 Finally, contrary to the People’s anticipated response, which will undoubtedly replicate their unsuccessful argument in opposition to appellant’s application for leave to appeal to this Court, it cannot be said that defense counsel only requested a dismissal of the charged counts, rather than a reduction to Burglary in the Third Degree on both counts. Clearly, the only conceivable import of all of counsel’s arguments, given his constant references to the charges of Burglary in the Second Degree, with its challenged “dwelling” element, is that the deficiency in the People’s proof as to that aggravating factor was the main focus of his misgivings. On this record, should the People argue that the issue of a reduction is unpreserved because counsel only sought a dismissal, it would truly exalt form over substance, as the claimed deficiency of the “dwelling” element was unequivocally brought to the court’s attention. In fact, the very vehicle of a trial order of dismissal motion — as does a pre- trial motion to dismiss owing to grand jury evidential insufficiency (C.P.L. §§ 210.20(1)(b) and 210.20(1–a)) — argues to the court, as a matter of law, that the evidence “is not legally sufficient to establish the offense charged therein or any lesser included offense[.]” C.P.L. § 290.10(1) (emphasis added). Thus, bringing such a motion implicitly seeks, in the alternative, any appropriate reduction. See People v. Smith, 183 A.D.2d 653, 656 (1st Dept. 1992) (where motion for a trial order of dismissal pursuant to C.P.L. § 290.10(1)(a) demonstrates, at best, that a 25 lesser included offense has been established, the court should submit that crime as the “greatest lesser included offense which was supported by legally sufficient evidence.”); People v. Newkirk, 75 A.D.3d 853, 858 (3rd Dept. 2010) (upon appellate review of the denial of a motion pursuant to C.P.L. § 290.10(1)(a), the court found the evidence was at least legally sufficient to sustain the lesser included offense of attempted rape in the first-degree.); cf. People v. Corliss, 51 A.D.3d 79, 85 (1st Dept. 2008) (motion court should have ordered the reduction of the charge to a lesser included offense pursuant to C.P.L. § 210.20(1–a), rather than dismissing the indictment entirely.); and, People v. Mullally, 38 Misc. 3d 1002, 1004 (Sup. Ct. Queens Co. 2013) (“the appropriate remedy, were the Court to find insufficient evidence that the home was a dwelling, would be to reduce that count to the lesser included offense of Trespass (P.L. § 140.05), which does not contain a ‘dwelling’ element.”) (citing C.P.L. § 330.50(1); C.P.L. § 470.15(2)(a); and, People v. Murray, 278 A.D.2d 898 (4th Dept. 2000)). In the event of a reduction upon such a motion — and unrelated to the offering of lesser included offenses to the jury “in addition” to the charged counts, pursuant to C.P.L. § 300.50(1) — the court, as concerns the “submission of a count,” would thereupon be required to submit to the jury “the greatest lesser included offense which is supported by legally sufficient trial evidence[,]” C.P.L. § 300.30(1). In this case such offense would have been Burglary in the Third Degree. 26 Accordingly, the issue presented is appropriately preserved. Hawkins; Ryan; Gray, supra. Most respectfully, on this record, as Judge Smith has admonished in a similar context, a contrary ruling would only “encourage prosecutors in their already well-established tendency to pounce on every arguable imperfection in a defense lawyer's argument as a barrier to deciding a case on the merits.” People v. Beasley, 16 N.Y.3d 289, 293 (2011) (Smith, J. dissenting). 27 POINT II THE UNLAWFUL ENTRY INTO THE PUBLIC COMMERCIAL PORTION OF A MULTI-USE HIGH-RISE STRUCTURE IS NOT AN ENTRY INTO A “DWELLING” FOR PURPOSES OF AN AGGRAVATED CHARGE OF BURGLARY IN THE SECOND DEGREE WHERE THERE WAS NO EVIDENCE THAT APPELLANT INTRUDED INTO THE UNCONNECTED AND SEVERED RESIDENTIAL AREA OF THE BUILDING, WHICH, IN ANY EVENT, WAS NOT READILY ACCESSIBLE FROM THE COMMERCIAL PORTION A. “Buildings” versus “Dwellings” Penal Law § 140.00(3) defines a “dwelling” as a building which is usually occupied by a person lodging therein at night.10 Under the relevant provisions, this is a necessarily aggravating factor because “[b]urglary of a dwelling at night involved not only great alarm to its occupants but also increased likelihood of injury to an occupant attempting to defend hearth and home.” People v. Barney, 99 N.Y.2d 367, 370 (2003). “At common law the crime of burglary consisted exclusively of breaking into a dwelling-place at night.” Id. (citing Quinn v. People, 71 N.Y. 561 (1878); 10 According to P.L. § 140.25(2), “[a] person is guilty of burglary in the second degree when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein, and when *** [t]he building is a dwelling.” On the other hand P.L. § 140.20 provides that “[a] person is guilty of burglary in the third degree when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein.” Obviously, “[t]he sole distinction between Penal Law § 140.20 and Penal Law § 140.25(2) … is that the subject building must also be a dwelling.” People v. Barney, 99 N.Y.2d 367, 371 (2003) and “[b]y using the phrase ‘usually occupied’ to define dwelling, the Legislature clearly intended to enact a flexible standard. Id. 99 N.Y.2d at 371-72. 28 and, People v. Quattlebaum, 91 N.Y.2d 744 (1998)). In contrast, “[e]arly revisions of the Penal Law recognized varying degrees of burglary and assigned the greater culpability for entering a dwelling at night where a person could be found because of the greater risk of harm associated with such an entry.” Barney, 99 N.Y.2d at 370. The lesser crime of Burglary in the Third Degree is a Class D felony, exposing a violator to an indeterminate term of imprisonment. See P.L. § 70.00(1). In fact, a person convicted of a Class D felony may be sentenced, in the court’s discretion, to a less harsh definite sentence of one year or less to be served in a local facility. P.L. § 70.00(4). On the other hand, Burglary in the Second Degree is a Class C violent felony, which results in a mandatory determinate term of incarceration. P.L. §§ 70.02(1)(b) and (2)(a). Obviously, the consequences of conviction of the higher offense are considerable. Other than a brief reiteration of its holding in People v. Cummings, 16 N.Y.3d 784, 785 (2011), cert denied, 132 S. Ct. 203 (2011), this Court last expanded upon the contrasting degrees of Burglary in Barney, supra. There, the proof demonstrated a fully furnished one-family residence with working utilities which could have been occupied overnight. The decedent's property remained in the house, including food in the refrigerator, and it was undisputed that the house had been ordinarily occupied overnight prior to the decedent’s death. This Court 29 held that “there is a valid line of reasoning by which the jury could have concluded that the house was ‘usually occupied by a person lodging therein at night.’” 99 N.Y.2d at 370-71. Hence, because this Court has assigned the “usually occupied” language of P.L. § 140.00(3) a rather “flexible standard,” Barney, 99 N.Y.2d at 372, it refuse[d] to adopt a rule that a house loses its character as a dwelling immediately upon the death of its sole occupant merely because there is no conclusive evidence that any other person intended to reside there. To do so would reduce the criminality of a burglar who, having knowledge of an occupant's or homeowner's death, would seek to exploit the situation, when the potential harm to persons — such as grieving friends and relatives — would still be present. The death of its sole occupant three days earlier did not, on its own, transform decedent's house from a dwelling into a building for the purposes of the burglary statute. Barney, 99 N.Y.2d 367 at 373. Contrastingly, in Quattlebaum, involving a school building, the Court found the facts not to support an aggravated burglary conviction. There, “[t]he existence of the bed and a chair in two offices was not enough to convert this building into what one would customarily conclude to be a residence, nor were these accommodations used with such frequency to allow a conclusion that the offices were ‘usually occupied by a person lodging therein at night.’” 91 N.Y.2d at 748- 49. 30 From these disparate holdings — essentially the only explications in this area by the Court of Appeals since Quinn was decided in 1878 — it can be deduced that where the subject structure, in the main, is essentially a dwelling (Barney), as distinguished from the area held to be non-residential in Quattlebaum, and either the residential part or a readily connected non-residential component thereof becomes the point of unlawful entry, an aggravated burglary charge will lie (Quinn). On the other hand, where only an unconnected and severed component of the main structure is used for residential purposes, as will be shown, Quinn holds that the lesser of degree of Burglary is applicable where the non-residential component is alone accessed.11 11 Notably, where a garage is attached to a building which is essentially a dwelling in its entirety, such as a private house or an apartment building, they are sometimes viewed as dwellings, per se, notwithstanding the absence of any inter-connectedness. Compare People v. Santana, 143 A.D.2d 207 (2nd Dept. 1988) (“The evidence at the trial discloses that the defendant was discovered by the police crouched behind a car in a garage which was connected to, and was structurally and functionally part of, the dwelling house”); and, People v. Stevenson, 116 A.D.2d 756, 757 (2nd Dept. 1986) (“The garage into which defendant entered was attached to a home and was connected by an interior door, therefore comprising essentially one building.”) (citing White v. State, 630 S.W.2d 340 (Tex. 1982); and, State v. Haas, 13 Or.App. 368, 510 P.2d 852 (1973), aff’d., 267 Or. 489, 517 P.2d 671, rev’d. on other grounds Oregon v. Hass, 420 U.S. 714 (1975)) to People v Green, 141 A.D.2d 760 (2nd Dept. 1988) (“Other courts, interpreting similar statutes, have rejected such a distinction and have held that an attached garage, even without an interconnecting door, constitutes part of the main dwelling. Since the garage in the present case was structurally part of a building which was used for overnight lodging of various persons, it must be considered as part of a dwelling” (citing People v. Moreno, 158 Cal. App. 3d 109, 204 Cal. Rptr. 17 (1984) and Burgett v State, 161 Ind. App. 157, 314 N.E.2d 799 (1974) (basement which was not directly accessible from living area held part of dwelling); Jones v State, 690 S.W.2d 318 (Tex. App. 1985); White v State, 630 S.W.2d 340 (Tex. App. 1982); People v. Coutu, 171 Cal. App. 3d 192, 217 Cal. Rptr. 191 (1985); and, People v. Ivory, 99 A.D.2d 154, 156 (3rd Dept. 1984) (hallway in apartment building constitutes dwelling)). 31 Most of the cases decided in this area by the lower New York courts, as well as in other jurisdictions, have generally addressed the scenario where the overriding residential nature of the main structure, as found in Barney, is indisputable. See e.g. People v. Harris, 19 A.D.3d 171, 172 (1st Dept. 2005) (“Defendant entered a hospital's executive suite and stole property from behind a desk in a cubicle that was unmistakably a nonpublic area even though it was not locked or otherwise secured. The hospital was a dwelling for purposes of burglary in the second degree because it was a building containing rooms occupied by patients overnight, notwithstanding that portions of the hospital were open to the public and that the executive suite was not used for lodging.” ) (citations omitted); People v. Ortiz, 78 AD3d 430 (1st Dept. 2010) (same); People v. Shackett, 159 A.D.2d 963, 964 (4th Dept 1990) (victim's private hospital room was a “dwelling”) (citing People v. Germany, 41 Colo. App. 304, 586 P.2d 1006 (Colo. Ct. of Appeals, Div. III), rev’d, sub nom., on other grounds,198 Colo. 337, 599 P.2d 904 (1979)); People v. Paul, 204 A.D.2d 205 (1st Dept. 1994) (evidence was “overwhelming” that “families use at least two floors of the building in which the warehouse is located as overnight lodgings, making the warehouse part of a ‘dwelling’ within the meaning of Penal Law § 140.00(3)”) (citations omitted); People v. Niepoth, 55 A.D.2d 970 (3rd Dept. 1977) (guest at inn’s downstairs business area, which contained a bar, restaurant and restroom, was properly 32 convicted of second-degree burglary for entering second-floor living quarters of inn proprietor with intent to commit a crime); People v. McCarron, 114 A.D.2d 977, 978 (2nd Dept. 1985) (“no reasonable view of the evidence … could lead the jury to conclude that defendant and his accomplice were responsible for the forced entry, but did not actually enter the room used as a lodging.”) (citing Niepoth); State v. Neal, 161 Wash. App. 111, 114, 249 P.3d 211, 212 (following State v. Murbach, 68 Wash. App. 509, 513, 843 P.2d 551 (1993) and holding that tool room of apartment building is part of the dwelling since “a ‘dwelling’ may be a building or structure used for lodging, or it may be any portion of a building where the portion is used for lodging.”), review denied, 172 Wash.2d 1011, 259 P.3d 1109 (2011); and, State v. Langford, 173 Wash. App. 1029 (Wash. Ct. App. 2013) (“The shed, where the gas can was taken, was connected to the residence by a roof and carport. Thus, the shed is ‘a portion’ of the residence.”). This case, in contrast, for the first time, is concerned with a common type of big city mega-structure which, given its myriad diverse components, part residential but mostly commercial, cannot readily lend itself to any one particular characterization. Accordingly, far greater analysis than that accorded by either the Appellate Division or the People is necessitated. 33 B. In Quinn v. People, this Court Interpreted the Predecessor Burglary Statute to Preclude Aggravated Culpability for the Unlawful Entry into the Non-Residential Component of a larger Building, Also Containing a “Dwelling,” Where the Commercial Part Entered Was Not So Connected with the Residential Area So That an Entrance Into the Former Would Not Endanger An Occupant of the Latter_____________ Obviously, upon assessing the level of offense, the “courts must look to the ‘nature of the structure’ and determine whether it was ‘normal and ordinary’ that it was ‘used as a place for overnight lodging’ and had ‘the customary indicia of a residence and its character or attributes.’” Barney, supra, 99 N.Y.2d at 373 (quoting Quattlebaum, 91 N.Y.2d at 748). Normally, in such event, as shown, connected and easily accessible components, and certainly attached garages even if not readily accessible, are viewed as dwellings. As in this case, however, the problem arises where a structure is not so monolithic, as to be easily definable, in its entirety, as a dwelling. Such is the situation, as here, where “normal and ordinary” usage is quite diverse, given the presence of numerous disparate components, both residential and commercial, none of which are garages where people access their cars, and many of which are not readily accessible from one to the other. We respectfully submit that a full and fair reading of Quinn, along with corresponding case law in other jurisdictions, reveals that the type of structure at issue in this case, involving a building housing upwards of six commercial establishments and occupying half of a New York City block, is not what the Legislature and the courts have sought to characterize, in its 34 entirety, as a dwelling for purposes of assigning an aggravated burglary charge whenever any non-residential part of it is unlawfully entered, as the District Attorney routinely theorizes. In Quinn, there was involved the burglary of a building that was used for business purposes. One of the business partners who owned the structure had maintained a residence in an upper room and was present on the night of the burglary. The building consisted of two lower stories that opened into one another and were used as stores for the partners’ business, and two upper stories, used as such a residence, that were accessible by an outside staircase. The Court held that the entry into the lower floor was an entry into a dwelling. It noted that, at common law, “there were no degrees of burglary, The [sic.] breaking into a dwelling-house in the night, with felonious intent, made the crime, and any building within the curtilage was deemed a dwelling-house.” Quinn, 71 N.Y. at 569. In this regard, it was observed that “the essence of the crime of burglary at common law is the midnight terror excited, and the liability created by it of danger to human life, growing out of the attempt to defend property from depredation.” Id., at 567. Thereafter, according to this Court, the revisers of the Penal Law “thought that the offense partook of different degrees of criminality, and sought to class them according to their atrocity.” Id. 35 As Quinn explained, owing to this legislative undertaking, the burglary statute in effect in 1878 — absent the “usually occupied” language, which was only later included, see Quattlebaum, 91 N.Y.2d at 749 — made essentially the same distinction between a dwelling and a building as does the modern New York provision. Thus, first-degree burglary involved “breaking into, and entering in the night-time, in the manner there specified, the dwelling-house of another, in which there is at the time some human being, with the intent to commit some crime therein.” Quinn, supra, 71 N.Y. at 569 (citing Former 2 R.S. (Revised Statute), p. 668, § 16). The Court observed that the revisers “saw that when the breaking was into a building in which someone was at the time sleeping, there was, by the act, a liability to create alarm, to provoke resistance and an affray, and to endanger human life; and that there was greater recklessness and depravity in the offender[.]” Quinn, 71 N.Y. at 569 (citations omitted). Accordingly, the Court noted that the nature of a dwelling was designed to be limited, given that the revisers remained “mindful of the extent to which the courts had gone … in holding an outer building a dwelling-house[.]” Quinn, 71 N.Y. at 570. Specifically, the revisers had defined that word for the purposes of the Burglary act as follows: ‘Section 16. No building shall be deemed a dwelling- house, or any part of a dwelling-house, within the meaning of the foregoing provisions, unless the same be joined to, 36 immediately connected with, and part of a dwelling-house.’ (2 R.S., p. 669, § 16). Quinn, 71 N.Y. at 570 (emphasis added). Upon this analysis, the Court came to the following conclusion: It is manifest that the revisers and the Legislature meant to exclude from the grade of burglary in the first degree, and from the severity of the punishment therefore, an entry into a structure, within the same inclosure as the dwelling-house, but not so connected with it as that an entrance into the former by force would be likely to rouse one sleeping in the latter. Id., 71 N.Y. at 571-72; emphasis added. Lest there be any doubt that Quinn was purposely confining its holding to the particular type of four-story structure involved in that case, where there was single ownership and an immediate, unsevered connection between residential and commercial components, the Court took pains to clarify: It may ward off misapprehension if it is said, that 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, another rule comes in. For illustration, let there be mentioned the Astor House in New York City. The rule is, that a part of a dwelling-house may be so severed from the rest of it, by being let to a tenant, as to be no longer a place in which burglary in the first degree can be committed; if there be no internal communication, and the tenant does not sleep in it. Then it is not parcel of the dwelling-house of the owner, for he has no occupation or possession of it; nor is it a dwelling-house of the tenant, for he does not lodge there. 37 71 N.Y. at 573-74 (citing 1 Hale P. C., 557, 558; Kel., 83, 84; 4 Black. Com., 225, 226; East P. C. C., 15, § 20, p. 507) (emphasis added). Notably, by pointing to the “Astor House in New York City” this Court was describing a big city structure that, while in 1878 was perhaps unique, has in the one hundred thirty-five years that have since passed, become rather commonplace. According to Wikipedia online encyclopedia12, Astor House was a hotel that opened in June 1836 as the Park Hotel. Covering four square blocks on the west side of Broadway between Vesey and Barclay Streets, across from New York’s City Hall Park, it contained 309 rooms in six stories. As do most modern hotels of today, it also contained commercial establishments, such as a bar and a restaurant. Because “[t]he language in the Court's opinion upon which [a litigant] relies cannot be taken as a decision upon a point which the facts of the case did not present[,]” United States v. Neifert-White Co., 390 U.S. 228, 231 (1968); see also People v. Anderson, 66 N.Y.2d 529, 535-536 (1985) (“‘[t]he language of any opinion must be confined to the facts before the court' … [citations omitted] ... ”), the “Astor House” exception should be dispositive of this appeal. For, contrary to the facts in Quinn, which are wholly distinguishable from this case, that reference undoubtedly underscores the conclusion that commercial or non-residential components of a far larger building, which are separately occupied and maintained 12 http://en.wikipedia.org/wiki/Astor_House. 38 by distinct entities, some of which are residential and some of which are not, and which are “so severed from” the residential components, are not, ipso facto, deemed to be dwellings. Rather, in such instances, the commercial component entered is “not so connected with [a residential area] as that an entrance into the former by force would be likely to rouse one sleeping in the latter.” Id., 71 N.Y. at 571-72. Accord: People v. Warwick, 135 Cal. App. 476, 478, 27 P.2d 396, 396-97 (Cal. Ct. App. 1933) (“The premises wherein the store was conducted were part of a larger building, the upper portion of which was occupied as a hotel, having an entrance on another street; and respondent contends, therefore, that the store itself was an ‘inhabited’ building within the meaning of said Code section. There is no merit in the point. The store and the hotel were wholly disconnected so far as communication was concerned, and there is no claim made that they were operated under the same management.”);13 People v. Grover, 177 Cal. App. 3d 1182, 1187, 13 In People v. Stephens, A111488, 2006 WL 2054357 (Cal. Ct. App. July 25, 2006), an unpublished decision by the California Court of Appeal, Warwick was explained as follows: In Warwick, the court affirmed a second degree burglary conviction of a tire store located in the same building as a hotel, holding that burglary of the tire store did not constitute first degree burglary because the tire store and the hotel were not connected in any way physically and did not share management. (Id . at p. 478.) The Warwick decision did not depend on the mixed-use character of the building. Rather, it turned on the degree of disconnect between the tire store and the hotel such that there was no risk of encountering residents in the tire store. (Ibid.) The present case is (continued on next page … ) 39 223 Cal. Rptr. 444, 447 (Cal. Ct. App. 1986) (“Despite extensive research, we are unable to find any case upholding a conviction of first degree burglary where the defendant did nothing more than burglarize the uninhabited portion of an inhabited building. We conclude, therefore, that a first degree burglary under the 1976 amendment to section 460 effective July 1, 1977 [i.e., “Every burglary of an inhabited dwelling house, trailer coach as defined by the Vehicle Code, or building committed in the nighttime, is burglary of the first degree”], could only be as a matter of law the burglary of an inhabited building or inhabited portion of that building. Burglary of an uninhabited building or an uninhabited portion of an inhabited building, would be burglary in the second degree.”) A fortiori, if this Court specifically sought to exclude a six story building such as Astor House from the impact of its holding in Quinn, it should certainly exclude the multi-component skyscrapers of today, where myriad commercial establishments exist within far larger structures, even if containing, in a small part, “not so connected,” Quinn, 71 N.Y. at 571-72, residential areas. Otherwise, for example, there would be presented the decidedly illogical result where entry solely into a lower level jewelry store at Trump Tower on Fifth Avenue, occupied by individual and severed tenants, would amount to second-degree burglary, even (continued from previous page … ) distinguishable from Warwick in that the level C parking for residents is directly connected to the condominiums by an elevator that is accessible only to condominium residents and their guests. 40 though it is wholly unconnected to those residential dwellings that are situated in the far higher stories of that multi-level structure.14 C. Treating this Continuing Crime as Two Second-Degree Burglaries is Inconsistent with Quinn and, Contrary to the Ruling Below, is not mandated by Quattlebaum____________________________________ In Quattlebaum, this Court addressed “a somewhat different question,” 91 N.Y.2d at 747, than had been involved in Quinn. Specifically, answering in the affirmative, Quinn was concerned with whether an indisputably residential component caused the entire structure, including its non-residential components, to be characterizable as a dwelling, Quattlebaum, on the other hand, responding in the negative, addressed whether a bed in single office, though sometimes used for an overnight stay, transformed an entire non-residential structure into a dwelling. Compare Quinn (commercial component accessible and connected to residential component is deemed part of dwelling); Barney (deceased person’s house remains a dwelling); McKenzie v. State, 407 Md. 120, 135, 962 A.2d 998, 1007 (2008) (“an unoccupied apartment that is between rentals, but is suitable for occupancy, is a ‘dwelling’ for purpose of statutory burglary”); and, State v. Scott, 169 N.J. 94, 102, 14 According to the Trump website, “[t]he first 26 [of 68] floors are comprised of luxury offices, providing world class services to Trump Tower’s commercial tenants. Accessible through a private entrance on 56th street, the residential condominiums comprise floors 30 through 68 …” (emphasis added). See http://www.trump.com/Real_Estate_Portfolio/New_York/Trump_Tower/Trump_Tower.asp. 41 776 A.2d 810, 815 (2001) (same) to Quattlebaum (schoolhouse not transformed into a dwelling by virtue of a single office containing a bed used for an occasional overnight stay); Arnold v. State, 7 Md. App. 1, 3, 252 A.2d 878, 879 (Md. Ct. Spec. App. (1969) (“A storage bin in the basement of a modern day apartment house can be a considerable distance from the apartment occupied by the lessee who uses a particular bin. We hold that the basement of an apartment house, not occupied by the owner, is a storehouse and not a dwelling.”); State v. Clark, 89 Mo. 423, 1 S.W. 332, 335 (1886) (“It is quite clear, therefore, that the ice-house, beer-cellar, or basement, was not, in the language of the text writers, under the immediate personal control of any of the dwellers above; and, that being so, there was nothing to make passing and repassing from said ice-house to the building above, in the language of the text writers, an ordinary household occurrence on the part of the dwellers above; and, if that be so, the peril to life consequent upon a nocturnal attack upon it, much less an attack in broad daylight, apprehended by the text writers and adjudged cases, does not exist in the case at bar … ”). Absent any discussion of the “Astor House” exception, the Quattlebaum Court explained that the ruling in Quinn, despite the fact that there had been no “internal communication” between the upper and lower floors, was premised on the statutory provision that “strongly suggested that a ground floor commercial space ‘under the same roof’ of a building otherwise used for residences was, in 42 fact, a dwelling.” Distinguishing cases which supported that proposition, Quattlebaum cited People v. Rohena, 186 A.D.2d 156 (1st Dept. 1992), lv denied, 81 N.Y.2d 794 (1993) and People v. Johnson, 162 A.D.2d 267 (1st Dept. 1990), lv denied, 76 N.Y.2d 894 (1990). 91 N.Y.2d at 747. Under the facts in Quattlebaum, therefore, upon addressing the meaning of the term “usually occupied by a person lodging there at night” (C.P.L. § 140.00(3)), the Court noted that, prior to 1967, the burglary statute had required proof of another person’s presence in the building, yet the current statute only requires that the building be “usually occupied.” 91 N.Y.2d at 747-48. See also Barney, supra. The Quattlebaum Court thus found that the Appellate Division had relied too heavily on whether a person had been actually sleeping in the building because physical presence was no longer required. 91 N.Y.2d at 749. Quattlebaum explained that “[i]ndeed, to hold otherwise in this case would convert into a dwelling every office or commercial space with a couch or comfortable chair that could be or infrequently is used for an overnight stay.” Id. Accordingly, after analyzing the factors that had been articulated in People v. Sheirod, 124 A.D.2d 14 (4th Dept. 1987), the Court concluded that the entity which Quattlebaum had entered, where “[n]either the building as a whole nor the fifth floor office had the customary indicia of a residence and its character or attributes[,]” 91 N.Y.2d at 748, did not constitute a dwelling. 43 The Appellate Division’s holding in this case that the men’s employee locker room of the Hilton is a dwelling, as is the unconnected Madame Tussaud’s Wax Museum, is certainly not constrained by Quattlebaum. On the other hand, it is directly contrary to the “Astor House” exception in Quinn. Indeed, if the order of affirmance of the court below were to be upheld, the unlawful entry into any of the unconnected and “so severed” establishments within 234 West 42nd Street — including Ripley’s Believe it or Not attraction, Applebee’s restaurant, Dave and Buster’s restaurant, the AMC Movie Theater, the Money Exchange, Modell’s, or even the ground floor lobby of the base building — would amount to the burglary of a “dwelling,” thereby elevating a Class D felony into a Class C violent felony. Otherwise stated, according to the Appellate Division, an unlawful entry into any of those commercial components would amount to Burglary in the Second Degree, regardless of the size of the structure or how far removed the sleeping quarters might be from the commercial spaces, and even though no sleeping resident would have been endangered. Quattlebaum provides no such rule; nor could it have done so without specifically undermining the exception delineated in Quinn, which it did not do. In our case, as the People’s evidence demonstrated, the only premises entered were (1) the men’s employee locker room in the Hilton Hotel and (2) Madame Tussaud’s Wax Museum, all “severed from” and “not so connected,” 44 Quinn, 71 N.Y. at 571-72, to the residential floors of the Hilton hotel. We respectfully submit that there is no basis for reasonably believing that an entry into such non-residential components that are not readily accessed, either thereto or therefrom, pose any risk of creating “alarm, to provoke resistance and an affray, and to endanger human life,” as discussed in Quinn, 71 N.Y. at 569; Quattlebaum, 91 N.Y.2d at 747; and, Barney, 99 N.Y.2d at 370. At the least, there is no basis for a reasonable belief that an entry into the wholly unconnected Madame Tussaud’s wax museum located several floors below the hotel, which was not readily accessible therefrom, given that the doors locked from the stairwell side, posed any risk to sleeping or “usually” sleeping hotel guests. The Appellate Division’s reference to its own earlier ruling in People v. Dwight, supra, does not impact at all on this proposition. Dwight simply upheld that conviction by concluding that the defendant’s claim that “there was insufficient evidence to sustain a finding that he was guilty of burglary in the second degree, since the part of the hotel building he entered was not used for residential purposes, is without merit.” 189 A.D.2d at 567. Also, upon noting that the evidence showed that the defendant therein had “left a hotel area which had signs of forced entry” Dwight relied on People v. Johnson, supra. The Johnson court, however, upon upholding that conviction for the burglarizing of a dwelling, referenced Quinn. But in Johnson — also cited by this Court in Quattlebaum — 45 the “‘main building’ which the shop was ‘part of,’ was a dwelling-house wherein tenants lodged at night” 162 A.D.2d at 268 (citations omitted). Although Johnson had never entered the dwelling, he had — similar to the single ownership structure in Quinn — nevertheless “entered a music shop located on the ground floor and second floor of a five-story residential brownstone situated on West 69th Street in Manhattan. The owners of the music shop, the complainant and her husband, resided on the third and fourth floors, and they leased the top floor as a residence to a tenant. The shop and residential units above were separate units.” Id. The results in Johnson and Dwight, therefore, fall squarely within the Quinn Court’s rationale in upholding that conviction, but bear no applicability to the facts at bar, which, in turn, specifically implicate the “Astor House” exception. Likewise, in People v. Rohena, supra, also cited by this Court in Quattlebaum, “the evidence adduced, that the rest of the building in which the doctor's office was located was occupied by tenants residing there at night, established that the office was part of a “dwelling”, and therefore, that the crime was burglary in the second degree.” 186 A.D.2d at 511 (citations omitted). Thus, in Rohena, essentially the entire building, other than the physician’s office, was an occupied dwelling. Contrastingly, here, according to the People’s evidence, the Hilton’s men’s employee locker room, to which the first Count is essentially directed, is hidden 46 and separated from hotel guests by being located on a mezzanine level, accessible only by a dedicated stairwell. Hence, it is cordoned off from the “hotel proper.” Even more to the point, Madame Tussaud’s, a completely disparate, unconnected establishment, and the component of the building which the second Count ostensibly contemplates, is “so severed from” (71 N.Y. at 573-74) the Hilton by five stories in a Times Square mega-building also housing a Dave and Buster’s restaurant, an Applebee’s restaurant, an AMC Movie Theater, a Ripley’s Believe it or Not, a Modell’s, and a Money Exchange. This layout, established by the People’s evidence, causes the men’s locker room of the Hilton, and certainly Madame Tussaud’s, to be properly considered “buildings,” not “dwellings,” as they are “not so connected with it as that an entrance into the former by force would be likely to rouse one sleeping in the latter.” Quinn, 71 N.Y. at 571-72. On such premises, the Appellate Division was simply wrong in its notion that “[i]t is of no consequence that the employee locker room of the hotel was not used for residential purposes … [or that] the museum, which was ‘under the same roof’ as the hotel, is a dwelling irrespective of whether there was ‘internal communication’ between the two.” 102 A.D.3d at 560. Accordingly, a burglary of either of the two premises is only chargeable in the third-degree because, contrary to the People’s view of the record, appellant never could, nor did, gain access to the residential portions of the hotel. In short, 47 the “under the same roof” holding below cannot be squared with the “Astor House” exception delineated in Quinn because the “midnight terror” to residents of the disconnected Hilton Hotel is simply not reflected on this record. D. Contrary to its Application by the Appellate Division, P.L. § 140.00(2) Does Not Support the Decision Below___________________________ This leaves the issue of the Appellate Division’s reliance on P.L. § 140.00(2) (“Where 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”). While referencing that provision in Quattlebaum, 91 N.Y.2d at 746, this Court has yet to explicate upon its actual meaning and purpose. We respectfully submit that, absent a clear legislative imperative, 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 which, though never entered, otherwise satisfy that definition of “dwelling” under P.L. § 140.00(3). Rather, the legislative history clearly demonstrates that the purpose of the enactment was simply to criminalize conduct in the first instance, regardless of degree, which might otherwise have escaped prosecution all together. Stated differently, it was never meant to elevate to a second degree what, in the absence 48 of the statute, might still be prosecuted at a lesser degree. Indeed, having been enacted under the Laws of 1967, ch 791, § 14, the purpose of this amendment is to denominate as burglary certain conduct which is not presently covered. For example, an intruder enters an apartment A of a multiple-apartment building solely to gain access to apartment B wherein he intends to commit a crime. Under present law, the invasion of apartment A does not constitute does not constitute burglary in any degree since the element of “intent to commit a crime therein” is missing. The proposed amendments remedies this situation. N.Y.S. Legislative Annual, 1967, p. 20 (emphasis added). Thus, absent § 140.00(2), an unlawful entry into the basement of an apartment building might not otherwise support an independent burglary count. So understood, the statute is solely meant to authorize prosecutions, regardless of the appropriate degree of burglary for that particular unit, where independent parts of a building are entered that might not, before the statute’s enactment, have appeared to be simply part of the larger structure. See e.g. People v. Cohen, 204 A.D.2d 159 (1st Dept. 1994) (upholding Second Degree Burglary conviction of a defendant who had illegally entered the basement of an apartment building, solely because, owing to P.L. § 140.00(2), such counted as part of the dwelling, as defined in § 140.00(3)). As a corollary, the subject language in P.L. § 140.00(2) also ensures that a perpetrator could be properly charged with additional counts, based on multiple entries into separate units within the same structure, even as part of the same 49 criminal transaction, without running afoul of double jeopardy principles.15 For example, in People v. Felder, 2 A.D.3d 365 (2nd Dept. 1988), the defendant entered into a secured area of a department store. He then returned to a public area, thereupon entering another, separately secured area. The Appellate Division held that Appellant's conviction of two counts of burglary did not violate principles of double jeopardy … This constituted entry into two separate ‘buildings’ for purposes of the burglary statute (Penal Law § 140.00 [2]), and defendant was properly charged with, and convicted of, two counts of burglary in the third degree.” 2 A.D.3d at 365 (citing People v. James, 204 A.D.2d 180 (1st Dept. 1994), lv. denied, 84 N.Y.2d 827 (1994)). Similarly, by separately criminalizing entry into distinct components of a building, the statute also precludes pleading issues, such as multiplicity, when several parts of a larger structure are independently — yet contemporaneously — entered. See People v. Alonzo, 16 N.Y.3d 267, 269 (2011) (an indictment “is multiplicitous when a single offense is charged in more than one count” (citation omitted).*** “If an indictment is multiplicitous it creates the risk that a defendant will be punished for, or stigmatized with a conviction of, more crimes than he actually committed.” ). 15 This is not to say, however, that consecutive sentences, based on one continuing criminal scheme, could be imposed. See Point III, infra. 50 We note in passing, that, the issue of whether an unsecured hallway is a separate unit under the statute is perhaps more problematic. Penal Law § 140.00(2) requires that the particular unit broken into be “separately secured or occupied.” Yet, in People v. Ivory, supra, absent any noted proof of same, it was held that “[t]he evidence was also sufficient to sustain defendant's conviction for burglary in the second degree, based upon his entry into the [common] hallway of the apartment house at 152 East State Street, without his ever having actually entered any of the apartments therein.” Compare Ivory to People v. Torres, 162 A.D.2d 385, 386 (1st Dept. 1990) (upholding a Second Degree Burglary conviction where “[t]he apartment building in question is six stories, but also was locked at the front door and was equipped with a buzzer and intercom system. There was also a ‘No Trespassing’ sign in both English and Spanish posted at the entrance.”) (emphasis added). Ivory, therefore, fails to address the full statutory construction. Indeed, while discussing the derivation of the statute, the Third Department did not even consider this “separately secured or occupied” clause of P.L. § 140.00(2): Under the original enactment of the revised Penal Law (L 1965, ch 1030) as well as its predecessor statute (former Penal Law [1909], § 401), individual units of apartment houses were deemed exclusively to be separate dwellings, as the previously quoted portion of the definition of “building” suggests. As such, the hallway may not have been considered a dwelling for the purpose of elevating the degree of the crime of burglary (see People v. Haupt, 218 App. Div. 251 [3rd Dept. 1926]). 51 However, the treatment of structures divided into separate units under article 140 of the Penal Law was modified by a 1967 amendment to the definition of building, making each such unit not only a separate building but also “a part of the main building” (Penal Law, § 140.00, subd. 2; L 1967, ch. 791, § 14). Thus, even if we were to accept defendant's argument that the hallway was a separate unit of the apartment house, it was also part of the “main building”, consisting of the entire apartment house structure. Since that entire building was concededly used for overnight lodging by various persons, it fell literally within the definition of “dwelling” for purposes of establishing that element of burglary in the second-degree. The Legislature clearly intended by this amendment to expand the meaning of the term building and, correlatively, that of the term dwelling as to burglaries of multi-unit structures, and we do not find that it produces such an anomalous result here as to militate against literal application of the statutory language. People v. Ivory, 99 A.D. at 156-57. In short, although common hallways in apartment buildings are certainly parts of those buildings that provide easy access into the apartments themselves, absent specific proof to that effect, they might not be “separately secured or occupied,” thereby perhaps precluding application of P.L. § 140.00(2). On the other hand, if indeed a hallway would satisfy that criterion, then, entering the hallway in addition to an apartment would certainly subject an accused to distinct units of prosecution. See e.g. People v. Pringle, 96 A.D.2d 873 (2nd Dept. 1983) (a locked nurse’s station within a prison was a separate building and part of the main building); People v. Smith, 144 A.D.2d 600 (2nd Dept. 1988) (where defendant and victim were co-tenants and defendant burglarized co-tenant’s room, defendant was 52 properly charged with second-degree burglary because the separate bedroom was a separate dwelling within a building). In any event, as seen, contrary to the broad interpretation given by the court below, § 140.00(2) simply criminalizes in the first instance the unlawful entry by an individual into a separately secured component of the same building in which the actor, by entering another part of the same structure, might otherwise escape prosecution. Without undermining the “Astor House” exception in Quinn, however, the statute does nothing to elevate to a second-degree burglary what is essentially the unlawful entry into a commercial part, simply because elsewhere in the structure, although “not so connected,” 71 N.Y. at 571-72, there exists a dwelling. In our case, while concededly allowing for the viable prosecution of two separate counts, given appellant’s unlawful entries into two separate commercial components of the same building (although not authorizing consecutive sentences, as explained in Point III, infra), Penal Law § 140.00(2) does nothing to aggravate the independent entry into the non-residential part of a building. Consequently, it does not transform what should be a charge of Burglary in the Third Degree into a Second Degree Burglary, where the separate components are not interconnected. In any event, to the extent that there is any ambiguity in construing P.L. § 140.00(2), in light of Quinn, the benefit should inure to appellant under the Rule of 53 Lenity. See United States v. Santos, 553 U.S. 507, 514 (2008) (“Under a long line of our decisions, the tie must go to the defendant. The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them.”). Similarly, “[a]lthough a court must not be overly technical in interpreting penal provisions, penal responsibility cannot be extended beyond the fair scope of the statutory mandate.” People v. Case, 42 N.Y.2d 98, 101 (1977). 54 POINT III THE IMPOSITION OF CONSECUTIVE SENTENCES WAS ILLEGAL UNDER P.L. § 70.25(2) WHERE APPELLANT’S CONTINUING CONDUCT WAS ALL PART OF A SINGLE CRIMINAL SCHEME16 As provided in Penal Law § 70.25(2), [w]hen more than one sentence of imprisonment is imposed on a person for two or more offenses 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, the sentences, except if one or more of such sentences is for a violation of section 270.20 of this chapter, must run concurrently. See People v. Wright, 19 N.Y.3d 359, 363 (2012); People v. Laureano, 87 N.Y.2d 640, 642 (1996). “Under Laureano, in determining whether concurrent sentences are mandated, the analysis required is whether the actus reus elements in both of the committed offenses, as defined, are the same, or if the actus reus for one offense is, by definition, a material element of the other.” People v. Bryant, 92 N.Y.2d 216, 231 (1998). Penal Law § 70.25(2) “extends” constitutional protections by prohibiting double punishment for a single offense when the defendant commits an act or omission that violates more than one section of the law and is accordingly punishable in different ways. People v. Ramirez, 89 N.Y.2d 444, 451, n. 5 (1996). 16 This issue, raising the legality of a sentence in contravention of a statute, is reviewable even in the absence of an objection. See People v. Samms, 95 N.Y.2d 52, 56 (2000) (“a challenge to an unlawful sentence falls outside the preservation rule.”). 55 Thus, the Legislature enacted P.L. § 70.25(2) to safeguard the fundamental protection against double jeopardy. Id., (quoting, People v. Snyder, 241 N.Y. 81, 83 (1925) [construing former P.L. § 1938]). This provision, therefore, is consonant with the need to prevent the “pyramiding” of penalties which the Supreme Court has precluded under analogous circumstances. See Prince v. United States, 352 U.S. 322, 327-28 (1957). Owing to P.L. § 70.25(2), concurrent sentencing is presumed unless the People can establish that multiple offenses are caused by multiple acts.17 People v. Rosas, 8 N.Y.3d 493, 496 (2007); People v. Day, 73 N.Y.2d 208, at 211 (1989). The “single act” element of P.L. § 70.25(2) pertains to the actus reus of the offense. People v. Rosas, supra; People v. Laureano, supra; see P.L. § 15.00(1) (defining culpable act as “bodily movement”). The actus reus of the crime is “‘the wrongful deed that comprises the physical components of a crime and that generally must be coupled with mens rea to establish criminal liability.’” People v. Frazier, 16 N.Y.3d 36, 40 (2010) (quoting, People v. Rosas, 8 N.Y.3d 493 (2007); quoting, Black’s Law Dictionary at 39 [8th ed. 2004]). In determining whether concurrent sentences must be imposed, the sentencing court must examine “the 17 In fact, the prosecution’s offer in this case had been a plea to one count of burglary in the second-degree for October 6th and one count of burglary in the second-degree for October 25th, with a recommended sentence of five years on each count to run concurrently, with five years of post-release supervision (R. 130). 56 statutory definitions of the crimes for which defendant has been convicted.” Laureano, supra, 87 N.Y.2d at 643. Under the plain language of the burglary statute, and even according to the First Department’s holding in People v. Matarese, 57 A.D.2d 765 (1st Dept. 1977), the “entry” into a structure is the “unit” — the actus reus — of the offense of burglary. In Matarese, the defendant entered a home through a window, exited with a television set, reentered the home, and exited once again with a canvas bag. The court held that, despite there having been two distinct entries, only one burglary had occurred, because both entries were performed in furtherance of a single criminal scheme. See also People v. Hogue, 179 A.D.2d 1042, 1043 (4th Dept. 1992) (“The conduct of defendant and his accomplice in attempting to cash a forged check at another branch of the bank earlier that day was not a separate crime, but rather, was part of a single scheme to obtain money illegally from Marine Midland Bank”), lv denied, 79 N.Y.2d 1002 (1992). In this case, there is an even stronger argument that only one burglary occurred. Unlike Matarese, who exited and reentered the premises, appellant remained inside the building at 234 West 42nd Street for the entire six hours that elapsed between approximately 10:30 p.m. and 4:30 a.m. The People presented no evidence that, at any point that night, appellant exited and re-entered 234 West 42nd 57 Street. Even if appellant had exited the building and reentered, under Matarese, his actions would still constitute a single burglary. Significantly, taking the People’s and the Appellate Division’s position to its logical end, the entering into a building at 11:59 p.m. and remaining therein for a minute until 12:00 a.m. would support one consecutive count, while remaining in the building past midnight until 12:01 a.m. and thereupon exiting would support a second, consecutive count. Most respectfully, such a conclusion would be absurd and flies in the face of controlling law. Indeed, it would contradict the First Department’s own precedent in Materese and would simply not amount to “multiple acts,” as required by People v. Rosas, and People v. Day. Accordingly, because appellant did not exit the building at all, and hence, was charged with two counts based on the fact that he remained in the building past midnight into the next calendar day, a straightforward and logical application of Matarese mandates that appellant’s conduct constituted a single burglary. This is certainly so because each act “constituted one of the offenses and also was a material element of the other.” P.L. § 70.25(2). Notably, even the indictment in this case does not distinguish between entries into either Madame Tussaud’s or the Hilton men’s locker room, which would concededly justify two separate counts, as opposed to consecutive sentences, under P.L. § 100.40(2), as explained in Feldman, supra. See Point II, 58 ante. Rather, the Indictment simply breaks down counts over time, with Count One alleging the entry into a “building” on October 6, 2009 and Count Two alleging entry into the same building on October 7th. Under such circumstances, regardless of the degree of burglary that is chargeable under two separate counts pursuant to C.P.L. § 140.00(2), appellant’s conduct amounted to one continuous scheme, and hence one offense for purposes of sentencing under P.L. § 70.25(2). This case is totally distinguishable from People v. Brown, supra, relied upon by the Appellate Division. There, the Court held that “defendant's possession of the stolen automobile was an act legally separate from his act, after being intercepted by police officers, of driving the stolen vehicle into a crowd of pedestrians on a sidewalk. The act of the possessory crime, though continuing, is distinct for consecutive sentence purposes from the discrete act of reckless endangerment.” 80 N.Y.2d at 364. Here, no such distinguishable acts are presented, other than one protracted unlawful entry into the subject building. In sum, because both second-degree burglary convictions stemmed from appellant’s “single act” of burglary of 234 West 42nd Street, the consecutive sentences imposed are illegal, as a matter of law. Accordingly, whether both counts are upheld as Class C violent felonies or are reduced to Burglary in the Third Degree, this Court should modify the judgment by ordering that appellant be 59 resentenced to concurrent terms on all counts. People v. Wright, supra; People v. Underwood, 52 N.Y.2d 882, 883 (1981). CONCLUSION For the Reasons Stated in Point II, the Order Affirming the Judgment of Conviction Should be Modified by Reducing Such Convictions to Burglary in the Third Degree; For the Reasons Stated in Point III, the Sentence Should Be Modified by Ordering the Terms of Imprisonment to Run Concurrently. Dated: New York, New York August 22, 2013 Respectfully submitted, Stanley Neustadter, Esq. Mark M. Baker, Esq. Attorneys for Defendant-Appellant Lionel McCray Cardozo Appeals Clinic* 55 Fifth Avenue, 11th Floor New York, NY 10003 (212) 790-0410 clinappcard@gmail.com ___________________________ * Counsel is indebted to Elsa Mitsoglou, a student at Cardozo School of Law, for her invaluable assistance in the preparation of this Brief.