The People, Respondent,v.Ronel Joseph, Appellant.BriefN.Y.September 14, 2016OAD I OFFICEOFTHE APPELLATE DEFENDER I I Park Place, Suite 160 I, New York, NY I 0007 I Tel. 212 402 4 100 I Fax 212 402 4199 VIA EXPRESS MAIL Hon. Andrew W. Klein Clerk of the Court www.appellatedefender.org June 15, 2015 Court of Appeals of the State of New York 20 Eagle Street Albany, NY 12207-1095 Dear Mr. Klein: Re: People v. Joseph (Ronel) APL-20 15-00108 Letter Brief for Defendant-Appellant I submit this letter in response to the Court's request of May 7, 2015, for arguments in support of defendant-appellant Ronel Joseph ' s position on the merits of the above case, pursuant to section 500.11 of the Court's Rules of Practice. This letter also includes Mr. Joseph 's objection to summary review. Ron el Joseph was convicted of the second-degree burglary of a "dwelling," despite the fact that the only place he entered was a deli ' s basement through double doors on the sidewalk outside of the deli. Because there were apartments on the floors above the deli, the lower courts both concluded that a strict reading of the burglary statute warranted a finding that the deli's basement constituted pait of a "dwelling." Even though the Appellate Division, unlike the trial comi, had the benefit of this Court' s decision in People v. McCray, 23 N .Y.3d 621 , 624 (2014), it misconstrued the case, which holds that an exception to the literal application of the statute applies where the place burglarized is so detached and inaccessible from the residential portion that the special dangers to which the second-degree burglary statute is addressed do not exist. Although the exception plainly should have applied to Mr. Joseph 's entry into the deli 's basement , the Appellate Division affirmed Mr. Joseph' s conviction based on its belief that the Court established a rule in McCray that the exception First Department Assigned Counsel Corporation can only apply to "large" buildings. This holding by the Appellate Division twisted this Court's precedents in McCray, as well as the much earlier Quinn v. People, 71 N.Y. 561 (1878). Moreover, its adoption of this overbroad standard for the application of the burglary statute could lead to the exact outcome warned of by this Court-namely, the anomalous finding of a dwelling in a scenario, like here, where it makes no sense. Where the self-contained basement of the deli was not a "dwelling," this Court must reverse Mr. Joseph's conviction. FACTUAL BACKGROUND Ron el Joseph Becomes Locked in the Basement of a Deli and Then Is Arrested. The arrest of Ronel Joseph resulted from events in the sidewalk basement of a deli located at Amsterdam Avenue on Manhattan's Upper West Side. T. 261-62, 322. 1 The basement of the deli ("deli basement") served as storage space for soft drinks and water. T. 326. The retail space of the store was located above the basement at street level. T. 262. Six floors of apartments were located above the deli. T. 263. There was no way to get from the deli basement to the store or the apartments. It was undisputed at trial that the only way to enter or exit the deli basement was through two doors that were flush with the sidewalk. T. 269-70, 325-27. The deli basement doors opened outwards onto the street in front of the deli, and led to a staircase that went down into the basement. T. 269-70, 325-27. The doors were only locked when the deli was closed. T. 348. An iron rod was used to prop the doors open for the deli employees to access the storage space in the basement. T. 326-27. At approximately 8:30 p.m. on the evening of June 28, 2010, T. 329-30, Mr. Joseph was walking down Amsterdam Avenue past the deli. T. 369-70. Both Mr. Joseph and Mr. Shorojit Roy, an employee of the deli, testified that the doors to the deli basement were open as Mr. Joseph passed it. T. 332, 361, 372. Mr. Joseph testified that, while he passed the deli, he took out his cell phone to call a friend. T. 369-71. He lost his grip and dropped the phone through the doors into the deli basement. T. 361, 370-71, 374. As Mr. Joseph testified, immediately after dropping his phone, he went down the stairs into the deli basement to find it. T. 361, 375-76. Mr. Joseph had a flashlight with him on his key-chain, and he began to shine it in the dark deli basement to find his phone. T. 362-63, 377-78. According to Mr. Joseph, three to 1 The transcript of the trial that took place on December 2, 3 and 6, 2010, will be cited as "T." 2 four minutes after entering the basement to look for his phone, the doors above him closed. T. 361-62, 379. Mr. Roy testified that he locked the doors after his closed-circuit television camera in the deli basement showed Mr. Joseph searching with his flashlight. T. 332, 335, 349. That closed-circuit video did not show Mr. Joseph taking or even touching any merchandise in the deli basement; the video only showed Mr. Joseph looking around with his flashlight. Nor was there any allegation that Mr. Joseph took anything from the deli basement. T. 348. After the doors closed, Mr. Joseph testified that he went up the stairs and attempted to explain to the person who had closed the doors that he was looking for his fallen phone. T. 363, 379-80. Mr. Roy-a Bengali speaker who admitted to only understanding "a little" English and who testified through an interpreter-testified that he did not hear Mr. Joseph say that he was looking for his phone. T. 322-23, 349. During Mr. Joseph's search in the deli basement, he never found his phone. See T. 381. Mr. Joseph testified that during the approximately eleven minutes that he remained in the deli basement, he focused on finding a way out of the basement. T. 380-82. After locking the doors, the deli employees called the police. T. 335-36. The police responded to the call and opened one of the doors. T. 270-71, 307. At their request, Mr. Joseph climbed up the stairs and exited the deli basement, where he was placed on the ground, handcuffed and, after a brief altercation, arrested for burglary. T. 273, 276, 278-79. The Trial Court Denies Mr. Joseph's Motion to Dismiss the Burglary Charges Based on the Prosecution's Failure to Prove Either Intent or That the Deli Basement Was a "Dwelling." At the close of the prosecution's case, defense counsel moved to dismiss the burglary charges on two grounds: (1) the lack of evidence of Mr. Joseph's intent to commit a crime in the deli basement; and (2) the fact that the deli basement did not constitute a "dwelling." T. 351-52. As to both second and third-degree burglary, defense counsel argued that neither the video nor the testimony showed that Mr. Joseph had any intent to commit a crime while he was in the deli basement-in particular, there was no evidence that Mr. Joseph took, or even attempted to take, anything from the deli basement. Id. With respect to the deli basement not being a "dwelling" for purposes of second-degree burglary, defense counsel argued: "[T]here's just no testimony whatsoever that you can get to the building or to the deli from the basement. You have to come up through these two doors, the storm doors, if I can call them that, and walk around and go through the main entrance to the deli." T. 352-53. The 3 trial court denied the motion to dismiss, relying upon a strict and literal interpretation of the statutory definition of "dwelling" to conclude that the separation of the apartments from the deli basement did not negate that the deli basement was a "dwelling." T. 353, 357. After Mr. Joseph testified, defense counsel renewed the motion to dismiss, which the court summarily denied. T. 391. The jury ultimately convicted Mr. Joseph of second and third-degree burglary, second-degree attempted escape and resisting arrest. T. 515-1 7. Mr. Joseph received a determinate sentence of seven years for his second- degree burglary conviction. He also received sentences of three and one half years to seven years on the third-degree burglary count, one year on the second-degree attempted escape count, and one year on the resisting arrest. A Divided Appellate Division Affirms Ronel Joseph's Conviction. On appeal, Mr. Joseph argued, inter alia, that the evidence in support of burglary in the second degree was legally insufficient where the deli basement could not properly be deemed a "dwelling" under the burglary statute. On January 13, 2015, a three-judge majority of the Appellate Division affirmed Mr. Joseph's conviction. People v. Joseph, 124 A.D.3d 437 (1st Dep't 2015). Although the majority agreed that there was complete inaccessibility between the deli basement and the residential units above the store, it concluded that the basement could still be deemed a dwelling based on the Court of Appeals' s decision in People v. McCray, 23 N.Y.3d 621 (2014). Joseph, 124 A.D.3d at 438-39. With regard to McCray's holding that a non-residential part of a building that contains residences should not always be deemed a dwelling where there is a lack of accessibility to the residential portion, the Appellate Division majority interpreted McCray as establishing a per se rule that this exception can only apply where the building at issue is "large." Joseph, 124 A.D.3d at 440 ("'In large buildings, situations can arise in which the general rule will not be applied because it does not make sense."') (quoting McCray, 23 N.Y.3d at 629) (emphasis in Appellate Division decision but not in McCray). Based on this interpretation, and its characterization of the seven-story building in this case as not being "large," the majority concluded that the basement was a dwelling. Joseph, 124 A.D.3d at 440. Justice Sallie Manzanet-Daniels, joined by Justice Dianne Renwick, dissented in part,2 concluding that McCray did not support a finding of the burglary of a dwelling in this case. The dissenting justices noted that the burglary statute's purpose is to address the "midnight terror" and risk to life that arise from 2 All justices concurred in the finding of legally sufficient evidence to support third-degree burglary. Joseph, 124 A.D.3d at 440. 4 a resident's attempt to defend property in the face of a burglar. Joseph, 124 A.D.3d at 440. Therefore, the Court of Appeals "underscored that where a "'crime is committed in a place [] remote and inaccessible from the living quarters[,] ... the special dangers inherent in the burglary of a dwelling do not exist.'" Id. (quoting McCray, 23 N.Y.3d at 624). The dissenting justices further took note that the McCray holding was premised not on the size of the building, but rather on the "critical factor" of whether there was such a lack of contiguity between the residential and non-residential parts of the structure, so as to prevent contact, or even awareness, by the residents of the burglar's presence. 124 A.D.3d at 441. Based on this, these justices concluded that the complete lack of either internal or external connection between the deli basement and the apartments rendered the basement not a dwelling. Id. at 442. Justice Manzanet-Daniels granted Mr. Joseph's application for leave to appeal on April 21, 2015. ARGUMENT POINT I RONEL JOSEPH'S CONVICTION FOR SECOND-DEGREE BURGLARY WAS LEGALLY INSUFFICIENT WHERE THE DELI BASEMENT HE WAS ACCUSED OF BURGLARIZING WAS NOT A "DWELLING," GIVEN THAT IT WAS ACCESSIBLE ONLY THROUGH DOORS THAT OPENED ONTO A PUBLIC SIDEWALK, AND THUS HAD NO PHYSICAL CONNECTION TO THE APARTMENTS ABOVE THE DELI AND PRESENTED NO OPPORTUNITY FOR CONFRONTATION WITH THE RESIDENTS. Ron el Joseph's conviction for second-degree burglary cannot be upheld where the location he allegedly burglarized is not a "dwelling" under the statute. 3 The evidence was legally insufficient where he was charged with burglary based on his entry into the basement of a deli via double doors that opened onto a public sidewalk. Given the total lack of access between the deli basement and the apartments above the deli, his alleged actions should not have been held to be the burglary of a dwelling. This Court held in People v. McCray, 23 N.Y.3d 621, 627 3Under the second-degree burglary statute, a "dwelling" is defined as a "building which is usually occupied by a person lodging therein at night," N.Y. Penal Law§ 140.00(3), and "[w]here a building consists of two or more units separately secured or occupied, each unit shall be deemed both a separate building in itself and part of the main building." N.Y. Penal Law§ 140.00(2). 5 (2014 ), that a location should not be deemed a "dwelling" for purposes of the statute where the location burglarized, while technically a part of a structure that contains residences, is so lacking in "close contiguity" with the residential portion that there is virtually no chance for an encounter between the burglar and the residents. Id. (quoting Quinn v. People, 71 N.Y. 561, 567 (1878)). Despite the absence of any possibility for the type of encounter targeted by the statute, Mr. Joseph was found guilty of burglarizing a "dwelling," and the Appellate Division majority affirmed this finding based solely on its determination that the building at issue was not "large." It was based on a substantial misreading of McCray that the Appellate Division arrived at its conclusion that only a large building is subject to this exception. Not only is the Appellate Division's determination contrary to this Court's precedent, it creates a standard that will lead to the overbroad application of the statute which this Court has specifically decried. This Court should therefore reaffirm the validity of its holding in McCray and reverse Mr. Joseph's conviction for second-degree burglary. There is a significant distinction in definition and treatment between second and third-degree burglary. While a burglary of a "building" is defined as third- degree burglary, N.Y. Penal Law§ 140.20, the more serious offense of burglarizing a "dwelling," is defined as second-degree burglary. N.Y. Penal Law § 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: ... 2. The building is a dwelling."). Moreover, second- degree burglary, unlike third-degree burglary, is categorized as a violent offense. See N.Y. Penal Law§§ 70.02, 70.04. There is no dispute about the reason why burglary of a dwelling is treated more severely. As this Court first made clear over 100 years ago in Quinn, and as remains the law today, the purpose for "the increased penalty for burglary of a dwelling [is] ... to prevent ... 'midnight terror' and the 'danger to human life, growing out of the attempt to defend property from depredation."' People v. Quattlebaum, 91 N.Y.2d 744, 747 (1998) (quoting Quinn, 71 N.Y. at 567). Most recently, in McCray, 23 N.Y.3d at 627, the Court reaffirmed Quinn's statement of the rationale as being avoidance of "midnight terror" and confrontation with residents: These words [from Quinn] from almost a century and a half ago are still apt as an explanation of why burglary of a dwelling is a more serious crime than other burglaries: an intrusion into a home, or an overnight lodging, is both more frightening and more likely to end in violence. 6 McCray, 23 N.Y.3d at 627 (emphasis added). It is for this reason that the Court created an exception to a literal and strict application of the statutory definition of a dwelling and concluded, as early as Quinn, that "part of a dwelling-house may be so severed from the rest of it, ... as to no longer" constitute a dwelling. 71 N.Y. at 573. That exception applies where there is such inaccessibility between where the burglary occurs and the residence that it "does not create the enhanced danger characteristic of a dwelling burglary." McCray, 23 N.Y.3d at 627. Thus, the Court has endorsed a "common sense limitation on a literal reading of the statute." Id. at 628. Applying this rationale to the facts of Mr. Joseph's case makes plain that the deli basement did not constitute a dwelling. Given that the deli basement lacked any connection or access point, either internal or external, to the residential portion of the building, Mr. Joseph's actions did not create any "enhanced danger" to the residents of the apartment on Amsterdam Avenue while in their homes. Mr. Joseph entered solely the basement of the deli, and when he was not in the basement, he could be only on the public sidewalk or street outside. The apartments could not be accessed internally from the basement, and the only entry or exit from the deli basement was through doors that opened onto a public sidewalk. This Court's recognition of an exception to a strict, literal interpretation of the statute is intended to avoid a conviction for "burglary of a dwelling where the burglar neither comes nor readily can come near to anyone's living quarters." McCray, 23 N.Y.3d at 628. That is the precise circumstance here. As the dissenting Appellate Division justices noted, the basement in this case was "the quintessence of 'inaccessible,' given that it was cut off from the building itself, and accessible only via the public sidewalk," and that the deli workers "locked [Mr. Joseph] into the vault-like basement while they called the police." Joseph, 124 A.D.3d at 441. Such a structure is not a dwelling. Despite how far removed these facts are from the scenario of "midnight terror" at which the statute is directed, the Appellate Division concluded that the deli basement constituted a dwelling based on its interpretation of McCray as creating a per se rule in which the exception only applies to buildings that are "large." The Appellate Division made this conclusion notwithstanding the fact that the tenor of this Court's decision in McCray was one of narrowing the reach of the second-degree burglary statute. 23 N.Y.3d at 628 (endorsing "a common sense limitation on a literal reading of [the] statute"). Neither McCray nor its predecessor, Quinn, support a finding that only "large" buildings may be exempted from the reach of the second-degree burglary statute. It was not the size of the building that was the dispositve factor in either McCray or Quinn, but rather it was the potential for an encounter between the burglar and the residents in their dwellings that was determinative. 7 In Quinn, unlike here, it was conceivable that the burglar could have confronted and "terrorized" a resident somewhere on the grounds of the building. There, the defendant burglarized a ground-floor store, above which were apartments where the shop-owner (and others) lived. 71 N.Y. at 564-65. The Court noted that, "To pass from the rooms used for business purposes to the rooms used for living in, it was necessary to go out of doors into a yard fenced in, and from thence up stairs." Id. at 565. Even without an internal connection between the residences and shop, the shop-owner, or any other resident, could have encountered a burglar in their joint fenced-in yard. Also, had that happened, the shop-owner, who was also a resident, likely would have felt the need to "defend [his] property" in his/her yard. Id. at 567. Because there was this accessibility and potential for confrontation with the residents, the Court concluded that the building was a dwelling. Id. at 569. A resident who encounters a burglar in his/her fenced-in yard remains on his/her own private property in obvious "close contiguity" to his/her "dwelling," whereas a resident who ventures onto a public sidewalk-which is the only way in which a resident in this case could have encountered Mr. Joseph-knowingly has left his/her dwelling and given up the legal protections against trespassers afforded to residents in their yards. Such a resident is no different from any other person who might happen to be walking down the street past the deli and the basement doors on the sidewalk. There is no special danger to the resident from Mr. Joseph's entry into the deli basement. Similarly, in McCray, in which the Court analyzed a defendant's burglary of a location containing a wax museum with a hotel above it, the Court's decision focused on the connection and access between the place burglarized and the residents. With regard to the burglary count involving a locker room that was part of the hotel, the Court found that the risk of '"night terror' and the danger of violence that [the Court] spoke of in Quinn" was present where, in burglarizing the hotel locker room, the defendant passed through stairways adjacent to and accessible to guest rooms. McCray, 23 N.Y.3d at 630. With regard to the count involving the burglary of the wax museum, the fact that the defendant could have accessed guestrooms via a stairway that connected the wax museum with the hotel was "just barely" sufficient to support a finding of second-degree burglary. Id. If this second count from McCray was a "close" case that "just barely" established enough access to merit a conviction, id., the aforementioned weaker facts of Mr. Joseph's case-where there was no "internal connection" or any access via the same private property-were plainly inadequate to support conviction. Accordingly, both Quinn and McCray turned on the question of accessibility, rather than an undefined characterization of the buildings as "large." 8 This Court made clear that an "unqualified" application of the dwelling definition in the statute is unwarranted and that it should not be applied to "a crime to which that [definition] would literally apply [but] that does not create the enhanced danger characteristic of a dwelling burglary." McCray, 23 N.Y.3d at 627. The Appellate Division majority's decision latched on to a sentence in McCray which notes that the exception may be found to apply "[i]n large buildings," given the potential absence of enhanced dangers that such buildings may present, id. at 629, and used that language to conclude that the exception only applies to large buildings. Joseph, 124 A.D.3d at 438-39. However, while the size of a building certainly may be relevant to the determination of whether there is access to the residents such that the danger of confrontation is present, the size of a building is not in and of itself a dispositive factor. A large building may present one example of where the enhanced danger is absent, and thus the reach of the statute should be limited, but the Court's decision in McCray in no way suggests an intention to make that the only scenario where the exception applies. Where it is undisputed that there was no access of any kind between the deli basement and the apartments above the store, Mr. Joseph's actions in entering the deli basement through the public sidewalk, and then being locked inside by the store employees, never implicated any "special danger" to the residents of the apartments. As such, the basement did not constitute a "dwelling," and Mr. Joseph's legally insufficient conviction for second-degree burglary must be reversed. See U.S. Const. amends. V, XIV; N.Y. Const. art. I,§ 6. POINT II MR. JOSEPH'S CONVICTIONS OF SECOND AND THIRD- DEGREE BURGLARY WERE LEGALLY INSUFFICIENT WHERE THE EVIDENCE OF INTENT TO COMMIT A CRIME IN THE BASEMENT OF THE DELI WAS INADEQUATE, GIVEN MR. JOSEPH'S EXPLANATION THAT HE WENT INTO THE BASEMENT TO FIND HIS DROPPED CELL PHONE AND GIVEN THE SURVEILLANCE VIDEO'S DEPICTION OF HIS ACTIONS WHILE IN THE BASEMENT. The evidence was legally insufficient for both second and third-degree burglary where the prosecution failed to prove beyond a reasonable doubt that Mr. Joseph had the "intent to commit a crime" in the deli basement. See N.Y. Penal Law§§ 140.20, 140.25(2). As defense counsel argued, neither the video surveillance nor any of the testimony showed that Mr. Joseph had any intent to commit a crime while he was in the deli basement-in particular, there was no evidence that Mr. Joseph took or even attempted to take anything. T. 351-52. In 9 fact, the evidence supported Mr. Joseph's explanation that he went into the basement to find his dropped cell phone. "Where a particular intent is an ingredient of the crime," as it is here, "the mere doing of the prohibited act does not constitute the crime unless accompanied with unlawful intent." People v. Stevens, 109 N.Y. 159, 163 (1888); see also People v. Bailey, 13 N.Y.3d 67, 71 (2009) (holding that the proof was legally insufficient as to intent). An unlawful intent was not established here, and thus the Court must reverse both of the burglary charges. See U.S. Const. amends. V, XIV; N.Y. Const. art. I, § 6. Mr. Joseph testified that he entered the deli basement and searched with a flashlight for several minutes to find his dropped cell phone before he heard the doors above him close. T. 362, 377-79. Mr. Joseph explained that, after he became locked in the deli basement, he shone the light around to try to find another exit-which, of course, did not exist. T. 380-82. In his summation, defense counsel noted that the evidence showed that Officer Gore had vouchered Mr. Joseph's cell phone, which supported Mr. Joseph's explanation. T. 421; see also T. 289. The prosecution did not dispute that point. Also, the prosecution did not (as it could not) dispute defense counsel's contention that the video did not record Mr. Joseph taking or even handling anything from the deli. T. 429-30. Instead, as the store employee's testimony confirmed, Mr. Joseph was not alleged to have taken anything from the deli basement. T. 348. None of the other evidence directly refuted Mr. Joseph's testimony that he went into the deli basement to search for his phone. Thus, the evidence failed to establish Mr. Joseph's intent beyond a reasonable doubt. For all the reasons described above, as well as those set out more fully in Mr. Joseph's briefs from the Appellate Division, the evidence in support of second and third-degree burglary was insufficient as to the element of intent, and these convictions should be reversed. * * * Finally, Mr. Joseph objects to summary review of this appeal under Court Rule 500.11. The Appellate Division has created a per se rule wrongly premised on this Court's holding from People v. McCray, and its interpretation of that case has the potential to sweep a broad range of conduct that is not the target of the second-degree burglary statute within its reach. As indicated by the sharp disagreement between the majority and the dissent in this case, further clarification by this Court is needed. 10 Enclosures cc (w/o encls): Respectfully submitted, Richard M. Greenberg, Esq. Attorney for Defendant-Appellant By: Diane N. Prine, Esq. Eunice C. Lee, Esq. Supervising Attorney Office of the District Attorney, New York County 11