The People, Respondent,v.Ronel Joseph, Appellant.BriefN.Y.September 14, 2016APL-2015-00108 To be argued by: EUNICE C. LEE, ESQ. (Counsel requests 15 minutes) COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- RONEL JOSEPH, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT RICHARD M. GREENBERG, ESQ. Attorney for Defendant-Appellant By: EUNICE C. LEE, ESQ. Supervising Attorney OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, NY 10007 Tel.: (212) 402-4100 Fax: (212) 402-4199 December 2, 2015 i TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 POINT I BECAUSE THE EXCEPTION TO THE SECOND-DEGREE BURGLARY STATUTE IS NOT LIMITED TO “LARGE” BUILDINGS, BUT RATHER IS PREMISED ON THE POSSIBILITY FOR CONFRONTATION WITH RESIDENTS, RESPONDENT CANNOT REFUTE THAT THE INACCESSIBLE DELI BASEMENT DID NOT CONSTITUTE A “DWELLING.” . . . . . . . 1 POINT II GIVEN RONEL JOSEPH’S TESTIMONY, THE CIRCUMSTANCES OF HIS ENTRY INTO THE DELI BASEMENT, AND THE SURVEILLANCE VIDEO DEPICTING HIS ACTIONS IN THE BASEMENT, NONE OF WHICH SUGGESTED THAT MR. JOSEPH INTENDED TO COMMIT A CRIME WHEN HE ENTERED THE BASEMENT, THE EVIDENCE FAILED TO ESTABLISH SECOND OR THIRD-DEGREE BURGLARY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 ii TABLE OF AUTHORITIES CASES People v. Barnes, 50 N.Y.2d 375 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 People v. Gaines, 74 N.Y.2d 358 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 People v. McCray, 23 N.Y.3d 621 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 7-9 People v. Quattlebaum, 91 N.Y.2d 744 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Quinn v. People, 71 N.Y. 561 (1878) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4-6 1 ARGUMENT POINT I BECAUSE THE EXCEPTION TO THE SECOND-DEGREE BURGLARY STATUTE IS NOT LIMITED TO “LARGE” BUILDINGS, BUT RATHER IS PREMISED ON THE POSSIBILITY FOR CONFRONTATION WITH RESIDENTS, RESPONDENT CANNOT REFUTE THAT THE INACCESSIBLE DELI BASEMENT DID NOT CONSTITUTE A “DWELLING.” Where the deli basement that Mr. Joseph was accused of unlawfully entering lacked any connection, internal or external, with the apartments above the deli, and the only potential for contact between him and any apartment resident was on a public sidewalk, there was no “enhanced danger characteristic of a dwelling burglary,” People v. McCray, 23 N.Y.3d 621, 627 (2014), and the exception to the burglary statute applies. Given that respondent acknowledges that the rationale behind deeming burglary of a “dwelling” second-degree burglary is to target those circumstances that create a potential for “midnight terror” and confrontation with residents, see Resp. Br. at 10-11, respondent cannot convincingly refute that this “enhanced danger” is completely absent in this case. Respondent can do no more than make an unsupported, if insistent, argument that the only context in which the exception applies is where the building is “large.” Resp. Br. at 15, 16. Respondent is wrong. 1For similar reasons, respondent’s citation to People v. Quattlebaum, 91 N.Y.2d 744 (1998), is unavailing. See Resp. Br. at 20-21. In Quattlebaum, the question was whether a school building’s use for overnight lodging was frequent enough to constitute being “usually occupied” under the burglary statute. 91 N.Y.2d at 746. The burglarized area was the ground floor of the school, and the “lodging” area was the fifth floor of the school. Id. Because Quattlebaum involved internally-connected floors within the same physical structure, it sheds no light on Mr. Joseph’s case, and the Court itself specifically noted that Quattlebaum, which turned on the frequency of use for overnight lodging, presented a “different question” than the one in Quinn v. People, 71 N.Y. 561 (1878), which turned on the accessibility of the burglar to the dwelling, and not whether the lodging area was truly used for residential purposes. Quattlebaum, 91 N.Y.2d at 747. 2 As an initial matter, respondent spends an inordinate amount of time discussing the undisputed—and largely irrelevant—contention that the second- degree burglary statute generally has been construed to hold that, if a building contains a dwelling, a burglary committed in any part of that building is the burglary of a dwelling. The common refrain that an area is part of a dwelling if it is “under the same roof” and “within the same four walls” is repeated no less than 12 times by respondent. See Resp. Br. at 15, 16, 18, 19, 24, 25, 28, 30, 33. Notwithstanding respondent’s repetition of this language, it does not answer the question of whether the deli basement in this case constituted a dwelling.1 That determination turns not on the general rule, but rather on the exception. Indeed, this Court has specifically rejected a strict and literal application of the “four walls” premise and “endorsed [an] exception because. . . in some cases applying the four walls and a roof rule would stretch the statute beyond its purpose.” 3 McCray, 23 N.Y.3d at 628. This exception is what is at issue, and respondent fails in its effort to refute that it applies here. Respondent does not dispute that the Court’s creation of an exception to a strict application of the burglary statute was premised on the notion that certain locations, while technically meeting the literal language of the statute, are so inaccessible to the dwelling area that the “enhanced danger” at which the statute is targeted is not present. But respondent insists that the exception is only for “large” buildings and tries to downplay the significance of accessibility. Accessibility is critical, however, and was in fact the dispositive issue in McCray. In McCray, the building containing the hotel and the wax museum was certainly large and, as respondent notes, Resp. Br. at 22, precisely the type of building in which application of the second-degree burglary statute might not make sense. However, notwithstanding the great size of the building, respondent concedes that the Court’s conclusion that the defendant’s entry into the locker room and wax museum constituted the burglary of a dwelling was based on the fact that “there were internal staircases connecting these non-residential areas with the hotel guest rooms above.” Id. at 22-23 (emphasis added) (citing McCray, 23 N.Y.3d at 627, 629-30). Size is relevant only as it relates to access, and thus this Court found a second-degree burglary in McCray given the ready internal access to the dwelling. 4 Moreover, respondent is wrong in suggesting that Mr. Joseph’s claim that the deli basement did not constitute a dwelling is premised solely on a lack of “internal communication” with either the deli or the apartments above it, which is not required for a finding of a dwelling. See Resp. Br. at 24-25. While the presence of internal communication weighs in favor of finding a dwelling—and indeed was dispositive in McCray—it is not Mr. Joseph’s contention that the deli basement is not a dwelling solely because it lacks internal communication with the apartments above the deli. Rather, it is the lack of any connection between the deli basement and the residences, either internal or external, that prohibits a finding that it is a dwelling. Thus, respondent’s comparison of this case to Quinn v. People, 71 N.Y. 561 (1878), which involved a burglarized shop that lacked only internal communication with the residences, fails. In Quinn, although the burglarized shop lacked internal communication with the apartments above it, there was external communication in the form of a shared, fenced-in yard through which one could go from the store to the apartments. 71 N.Y. at 565. There was the potential for the apartment residents to be confronted by a burglar in their own backyard. This is quite distinct from the deli basement, which lacked either internal or external communication with the residences, and allowed for a 5 confrontation only on a public sidewalk. As a result, the building residents were not situated differently than any other individual on the street. Although the significance of external communication to the question of whether a location is a dwelling was expressly considered at common law, as noted by this Court in Quinn, 71 N.Y. at 566, respondent conspicuously avoids any meaningful discussion of this. However, the Court made clear that structures lacking internal communication generally required external communication, such as a shared yard, enclosure or curtilage, of the kind present in Quinn, to be found to be a dwelling. 71 N.Y. at 566 (noting that there was no need for internal communication where the room and the building “were in the same inclosure, and were built close to and adjoining each other”). Respondent relegates its mention of this part of the decision in Quinn to a footnote, Resp. Br. at 18 n.8, and then tries to deflect with an argument that the historical basis for excluding some structures from the traditional definition of a dwelling was an intention to “exclude from the statute’s purview only the separate and unconnected ‘out- houses’ recognized under the common law as dwellings when they were within the same curtilage or fence as the dwelling-house.” Resp. Br. at 19; see also id. at 30 (“the question of external communication—i.e., the same fence or curtilage—was 6 relevant in the common law for the question of whether unconnected ‘out-houses’ could be considered dwellings when on the same lot as the dwelling house”). Contrary to respondent’s claim, external communication was deemed relevant to the dwelling question generally, not just with respect to outhouses. In fact, the Court in Quinn analyzed two cases that presented the exact scenario presented in this case—a shop (not an outhouse) connected to a residence—and found that the outcome was dependent on external communication. In a case (from Leach reporter) where the shop that was burglarized lacked internal communication with the dwelling-house, but it shared a courtyard with the dwelling-house, “which yard was inclosed by a brick wall, including [both structures] within it, with a gate in the wall serving for ingress to them,” the court found a dwelling burglary. 71 N.Y. at 566 (emphasis added). The Court compared this to a case (from Johnson’s Reports) in which the court concluded that there was not a burglary of a dwelling, where the shop that was entered, though on the same lot with the dwelling, was “not inclosed by the same fence, nor connected by a fence, and both [structures] open to a street.” Id. at 566-67 (emphasis added). In one case, the presence of external communication warranted finding a dwelling, and in the other case its absence prohibited such a finding. Respondent’s reference to the common law discussion in Quinn glaringly omits 7 the analysis from these cases. Nonetheless, it is clear that the common law recognized that where there is neither internal nor external communication, a finding of a dwelling is unwarranted. The problem with respondent’s position is that it fails to acknowledge that the underlying rationale for the burglary statute—i.e., targeting those circumstances that create a potential for “midnight terror” and confrontation with residents, McCray, 23 N.Y.3d at 627—simply is not present here. Mr. Joseph’s entry into and being trapped in the vault-like deli basement, which lacked either internal or external communication with the apartments above the deli, or even the deli itself, presents the precise type of inaccessibility with which the exception to the burglary statute is concerned. Since Mr. Joseph at all times could only be either in the deli basement or out on a public street, there was no possibility of a confrontation with residents in their homes or any curtilage thereof. While respondent tries to dismiss this critical fact by asserting that the “close proximity” between the deli basement and the apartments is good enough, Resp. Br. at 27, and that whether a confrontation “played out in a private yard or on a public street is irrelevant,” id. at 28, such a claim is plainly illogical because the whole point of the statute is to protect residents in their dwellings, not residents just out and about on the street with the rest of the general public. A 2Respondent applies its sized-based, per se rule to argue that because the building at issue here is comparable in size to the building at issue in Quinn, which found the shop’s burglary to constitute a dwelling burglary, the same should be found in the “almost identical”-sized building in this case. Resp. Br. at 24, 25. Aside from being improperly based on size alone, this argument ignores the fact that the location burglarized in Quinn was very different from the deli basement. Most significantly, as discussed supra, the burglarized shop in Quinn was externally connected to the apartments above it via a shared, fenced-in yard. Therefore, the location in Quinn is not comparable to the one here. 8 “special” or “enhanced” danger is, by definition, one that is not faced by everyone walking down the street. There can be no “frightening intrusion,” id., or any intrusion, if there is no relation to a private or limited area connected to a residence. McCray underscores this point, explaining that a dwelling burglary is more serious because it is “an intrusion into a home, or an overnight lodging, [that] is both more frightening and more likely to end in violence.” 23 N.Y.3d at 627 (emphasis added). Thus, respondent fails in trying to claim that the burglary statute is based on “the potential for dangerous confrontation that can happen anywhere near the residence.” Resp. Br. at 31 (emphasis added). “Nearness” is not enough to convert the deli basement into a dwelling. Respondent further tries to contend that Mr. Joseph is advocating an exception that would swallow the general rule because “few multiuse, multistory buildings would be sufficiently small to qualify for the ‘general’ rule.” Resp. Br. at 24; see also id. at 32. This contention, however, is a complete red herring, as it is respondent, not Mr. Joseph, that is advocating a rule based solely on size.2 Mr. 9 Joseph is not arguing that the deli basement is not a dwelling because the deli and the apartments above it are in a building so large that the burglary exception should apply. Instead, he is arguing that the exception applies because the deli basement is “so remote and inaccessible from the living quarters that the special dangers inherent in the burglary of a dwelling do not exist.” McCray, 23 N.Y.3d at 624. The size of a building may certainly be relevant to that determination, but, as in McCray, it is not necessarily dispositive. Accessibility, which is completely lacking here, matters as much, if not more than, nearness as a component of a building’s size. See id. at 630 (“the ease of access from one place to another is at least equally important [as proximity]”). Moreover, while respondent asserts that consideration of accessibility is a more subjective factor than merely looking to a building’s size, see Resp. Br. at 32-33, the consideration of accessibility, unlike respondent’s size rule, not only is more objective, but it has the extraordinary advantage of actually being relevant to the statute’s purpose—i.e., preventing confrontation and “midnight terror.” At bottom, the deli basement was not a part of a “dwelling” in any meaningful sense—legal or practical—of the word. It was effectively a storage vault under the ground, inaccessible internally and externally to anything but the sidewalk, with no possibility of the residents of the apartments on Amsterdam 10 Avenue feeling compelled to investigate, much less defend, any intrusion that occurred in it. Indeed, any resident who went into the deli basement would himself or herself be a trespasser. But even assuming that one did feel so moved, that resident would be no different from a passerby on the public sidewalk, and any confrontation that occurred would present no special danger to the person as a result of his or her status as a resident in the apartment building above the deli. A burglary in such an inaccessible location as the deli basement is not what the statute is intended to address. This Court should maintain the common sense limitation it recognized in McCray and decline to deem the deli basement a dwelling. Accordingly, Mr. Joseph’s conviction for second-degree burglary should be reversed. 11 POINT II GIVEN RONEL JOSEPH’S TESTIMONY, THE CIRCUMSTANCES OF HIS ENTRY INTO THE DELI BASEMENT, AND THE SURVEILLANCE VIDEO DEPICTING HIS ACTIONS IN THE BASEMENT, NONE OF WHICH SUGGESTED THAT MR. JOSEPH INTENDED TO COMMIT A CRIME WHEN HE ENTERED THE BASEMENT, THE EVIDENCE FAILED TO ESTABLISH SECOND OR THIRD-DEGREE BURGLARY. The prosecution failed in its attempt to establish Ronel Joseph’s intent to commit a crime when he entered the deli basement. Where the evidence at trial, including surveillance video that confirmed that Mr. Joseph did not handle any of the merchandise in the basement, did not refute Mr. Joseph’s explanation that he went into the basement to retrieve his dropped cell phone, it was insufficient to establish his guilt of either second or third-degree burglary. Although respondent acknowledges, as it must, that a conviction for burglary required that Mr. Joseph possessed an intent to commit a crime in the deli basement at the time of his entry, Resp. Br. at 40, respondent tries to argue that Mr. Joseph’s mere entry into the basement—if knowingly wrongful—establishes that intent. Id. at 36, 40. Of course this reasoning is wrong because a knowing trespass, without more, does not establish the intent for burglary. See People v. Gaines, 74 N.Y.2d 358, 362 (1989) (a person “who simply trespasses with no intent to commit a crime inside a building does not possess the more culpable 12 mental state that justifies punishment as a burglar”). Thus, respondent cannot establish the intent for burglary by pointing to the fact that the deli basement was off-limits to the general public and that Mr. Joseph himself admitted that he should not have entered the deli basement to retrieve his phone without first talking to the store employees. See Resp. Br. at 36. It also certainly does not follow that this mere entry into the open basement doors provided a legally sufficient basis for concluding that Mr. Joseph entered with the intent to steal something inside. Moreover, where respondent admits that the means by which a defendant enters a building is relevant to the question of intent, and a forcible or otherwise suspicious entry is more likely to constitute proof of the intent for burglary, see Resp. Br. at 40, the fact that Mr. Joseph’s entry occurred with no force and no surreptitious or suspicious behavior, and was not at an unusual time, is very relevant to the question of Mr. Joseph’s intent. Such factors are most often present in cases where the courts have found the intent for burglary. See, e.g., People v. Barnes, 50 N.Y.2d 375, 381 (1980) (evidence established defendant’s intent to commit crime in a store where his entry was through smashed windows and required him to straddle a glass-strewn ledge), and cases cited in Mr. Joseph’s opening brief at 35-36. The absence of any of those factors here, while not 3Although respondent admits that Mr. Joseph argued below that the prosecution failed to present legally sufficient evidence because “the evidence showed that he had no intent to commit any crime,” respondent contends that Mr. Joseph is raising an additional, and unpreserved, claim on appeal that “the evidence at trial showed at most that he formed an intent to commit a crime only after entering the basement.” Resp. Br. at 41. There plainly is no “new” claim on appeal. If Mr. Joseph argued below that he never had an intent to steal in the basement, that argument necessarily subsumes that he lacked such intent at the time of his entry, which is the only time relevant to the question of establishing the intent for burglary. 13 dispositive, undermines a finding that Mr. Joseph intended to commit a crime at the time he entered the deli basement.3 Respondent argues that Mr. Joseph’s explanation that he went into the deli basement to search for his dropped phone is unbelievable because the surveillance video “shows him standing upright and looking around throughout the basement,” rather than solely in the area near the entrance, which is where respondent asserts a dropped phone most likely would have been found. Resp. Br. at 38-39. However, that behavior is in no way inconsistent with Mr. Joseph’s testimony that, once he heard the deli basement doors being closed above him, he focused on locating an exit. See T. 380-82; A. 165-67. Indeed, respondent itself suggests that Mr. Joseph’s actions in looking around after the doors were closed were indicative of an attempt “to look for another exit from the basement.” Resp. Br. at 37. Looking for an exit once locked inside a hot, vault-like basement is what one would do regardless of the circumstances or intent at entry, and so the depiction of this behavior on the video surveillance—particularly where the video does not 14 show Mr. Joseph handling or even touching any of the merchandise in the basement—does not support a finding of intent. Although Mr. Joseph’s explanation about his dropped phone was, in part, supported by the evidence indicating that his cell phone was recovered and vouchered, respondent dismisses this fact by noting that Officer Gore testified that he recovered the phone from Mr. Joseph’s person, not from the basement. See Resp. Br. at 38. Respondent’s argument on this point, however, ignores that Gore’s testimony about where the phone was recovered from was hardly unequivocal. Officer Gore initially testified that he “believe[d]” that the phone was recovered from Mr. Joseph, based on “looking back at [his] notes.” T. 290; A. 75. However, he subsequently admitted that the voucher he filled out for the phone did not note where he had recovered the phone and, therefore, did not indicate that the phone had been recovered from Mr. Joseph. T. 290-92; A. 75-77. Thus, respondent is wrong in claiming that Mr. Joseph’s explanation was “entirely discredited” by Gore’s testimony that he recovered the phone from Mr. Joseph. Resp. Br. at 38. Similarly, respondent’s reliance on the recovery of a flashlight from the basement, at least one or possibly three days after the fact, as proof of Mr. Joseph’s intent to commit a crime when he entered the basement also fails. See 15 Resp. Br. at 37. Where Mr. Joseph denied that the flashlight purportedly recovered from a carton in the deli basement was his, it does, in fact, matter that the circumstances of the flashlight’s recovery are in dispute. The testimony on this point from the prosecution’s witnesses was inconsistent; Mr. Roy testified that a deli employee found a flashlight in a carton in the basement the day after the incident, and they subsequently turned it over to the police, T. 344-45; A. 129-30, while Officer Gore claimed that he personally found the flashlight in the basement three days later. T. 283-84; A. 68-69. Such contradictions, far from being “of no moment,” Resp. Br. at 37-38 n.9, are relevant to the question of whether there is a basis for inferring that the flashlight was Mr. Joseph’s, and thus does impact the sufficiency of the prosecution’s case. For all the reasons described above, as well as those set out more fully in Mr. Joseph’s opening brief, the evidence in support of second and third-degree burglary was insufficient as to the element of intent, and these convictions should be reversed. 16 CONCLUSION For the reasons stated above and in his opening brief, Ronel Joseph’s convictions for second and third-degree burglary should be reversed, and the indictment dismissed as to those counts. Dated: New York, New York December 2, 2015 Respectfully submitted, RICHARD M. GREENBERG, ESQ. Attorney for Defendant-Appellant By: _________________________ EUNICE C. LEE, ESQ. OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, New York 10007 (212) 402-4100