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. 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 September 30, 2015 i TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 A. The Exception to the Second-Degree Burglary Statute Clearly Applies Here, Given the Rationale That an Offense That Creates No Enhanced Danger to Residents Is Beyond the Statute’s Purpose. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 1. The second-degree burglary statute targets offenses that create the “enhanced danger” characteristic of the burglary of a dwelling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 ii 2. An exception to the literal language of the burglary statute applies where inaccessibility prevents any potential for the “enhanced danger” at which the statute is aimed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 B. This Court’s Decisions in Both Quinn and McCray Demonstrate That the Inaccessible Deli Basement Did Not Constitute a “Dwelling.” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 C. This Court Has Not Held That the Exception to the Second- Degree Burglary Statute Applies Only to Large Buildings, and to Do So Would Result in an Unwarranted Broadening of the Statute’s Application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 POINT II RONEL JOSEPH’S CONVICTIONS OF SECOND AND THIRD- DEGREE BURGLARY WERE LEGALLY INSUFFICIENT WHERE THE EVIDENCE OF INTENT TO COMMIT A CRIME AT THE TIME OF HIS ENTRY INTO THE DELI BASEMENT WAS INADEQUATE, GIVEN MR. JOSEPH’S TESTIMONY, SUPPORTED BY THE SURVEILLANCE VIDEO, THAT HE ENTERED THE BASEMENT TO FIND HIS DROPPED CELL PHONE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 iii TABLE OF AUTHORITIES CASES In re Winship, 397 U.S. 358 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 People v. Bailey, 13 N.Y.3d 67 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 People v. Barnes, 50 N.Y.2d 375 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 People v. Bergman, 70 A.D.3d 1494 (4th Dep’t 2010) . . . . . . . . . . . . . . . . . . . . 36 People v. Danielson, 9 N.Y.3d 342 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 People v. Diaz, 53 A.D.3d 504 (2d Dep’t 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . 36 People v. Gaines, 74 N.Y.2d 358 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35, 40 People v. Irrizary, 183 A.D.2d 630 (1st Dep’t 1992) . . . . . . . . . . . . . . . . . . . . . . 36 People v. Joseph, 124 A.D.3d 437 (1st Dep’t), lv. granted, __ N.Y.3d ___ (2015) . . . . . . . . . . . . . . . . . . . . 1, 14-16, 23, 29 People v. Mackey, 49 N.Y.2d 274 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 People v. McCray, 23 N.Y.3d 621 (2014) . . . . . . . 5, 15-17, 21-23, 27-29, 31, 32 People v. Quattlebaum, 91 N.Y.2d 744 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 People v. Sterina, 108 A.D.3d 1088 (4th Dep’t 2013) . . . . . . . . . . . . . . . . . . . . . 36 People v. Stevens, 109 N.Y. 159 (1888) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Quinn v. People, 71 N.Y. 561 (1878) . . . . . . . . . . . . . . . . . . . . 5, 17, 20, 21, 24-26 iv CONSTITUTIONAL PROVISIONS N.Y. Const. art. I, § 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 35 U.S. Const. amend. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 35 U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 35 STATUTES N.Y. Crim. Proc. Law § 450.90 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 N.Y. Penal Law § 140.00 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 20 N.Y. Penal Law § 140.00(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 N.Y. Penal Law § 140.05 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 N.Y. Penal Law § 140.20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 6, 19, 34 N.Y. Penal Law § 140.25(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 4, 6, 19, 34 N.Y. Penal Law § 205.30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 N.Y. Penal Law § 70.02 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 N.Y. Penal Law § 70.04 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 N.Y. Penal Law § 70.04(3)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 N.Y. Penal Law § 70.06(3)(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 N.Y. Penal Law § 70.06(4)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 N.Y. Penal Law §§ 110.00/205.10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1 COURT OF APPEALS STATE OF NEW YORK ---------------------------------------------------------------------x : THE PEOPLE OF THE STATE OF NEW YORK, : : Respondent, : : -against- : : RONEL JOSEPH, : : Defendant-Appellant. : : ---------------------------------------------------------------------x PRELIMINARY STATEMENT By permission of the Honorable Sallie Manzanet-Daniels, Justice of the Appellate Division, First Department, granted April 21, 2015, appeal is taken from an order of the Appellate Division, First Department, entered on January 13, 2015, see People v. Joseph, 124 A.D.3d 437 (1st Dep’t), lv. granted, __ N.Y.3d ___ (2015). This order affirmed a judgment of conviction rendered on January 13, 2011, as amended February 3, 2011, and February 22, 2011, by the Supreme Court, New York County (Laura A. Ward, J.), convicting Ronel Joseph, after a jury trial, of burglary in the second degree, N.Y. Penal Law § 140.25(2), burglary in the third degree, N.Y. Penal Law § 140.20, attempted escape in the second degree, N.Y. Penal Law §§ 110.00/205.10, and resisting arrest, N.Y. Penal Law 1Citations preceded by “T.” refer to the trial transcript, and citations preceded by “S.” refer to the sentencing transcript; parallel citations to the Appendix will be preceded by “A.” 2 § 205.30, and sentencing him to concurrent prison terms of seven years, three and one-half to seven years, one year, and one year, respectively, as well as five years of post-release supervision. This Court has jurisdiction, pursuant to New York Criminal Procedure Law § 450.90, to entertain this appeal and review the two questions raised. As to the question raised in Point I, Mr. Joseph is asserting that his rights were violated by his conviction of second-degree burglary based on legally insufficient evidence that the location of the alleged burglary constituted a “dwelling,” as argued by defense counsel at trial. T. 351-54; A. 136-39.1 As to the question raised in Point II, Mr. Joseph is asserting that his rights were violated by his conviction of both second and third-degree burglary, where the evidence was legally insufficient of his intent to commit a crime within the allegedly burglarized location, as defense counsel argued. Id. 3 QUESTIONS PRESENTED 1. Where the deli basement that Ronel Joseph 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, was his conviction for second-degree burglary legally insufficient? 2. Where the evidence of intent to commit a crime at the time of Ronel Joseph’s entry into the deli basement was inadequate, given Mr. Joseph’s testimony, supported by the surveillance video, that he entered the basement to find his dropped cell phone, were his convictions of second and third-degree burglary based on legally insufficient evidence? 4 INTRODUCTION While walking down Amsterdam Avenue on Manhattan’s Upper West Side one night, Ronel Joseph inadvertently dropped his cell phone down into open doors on the sidewalk and ultimately found himself trapped underground in the dark storage basement of a deli. Mr. Joseph had climbed down the stairs into the deli basement to search for that cell phone using a flashlight on his key-chain. After a few minutes of searching, Mr. Joseph heard the doors of the deli basement close above him. An employee of the deli, who, via a security camera, had seen Mr. Joseph shining his flashlight, locked Mr. Joseph in the basement. Mr. Joseph looked around for an exit but found none because the only way in or out of the basement was through the locked doors that opened onto the public sidewalk. When the doors opened, Mr. Joseph exited the basement onto the sidewalk and, after an altercation, was arrested by police for burglary. Unfortunately for Mr. Joseph, there happened to be apartments above the deli. Even though Mr. Joseph had never come close to the apartments, the residents or their property, he was charged with and convicted of, inter alia, second-degree burglary under Penal Law § 140.25(2). Defense counsel moved to dismiss this charge at trial on the ground that Mr. Joseph had never entered a “dwelling”—a required element of second-degree burglary. The trial court’s 5 denial of this motion, and the subsequent decision of the Appellate Division affirming his conviction—by a 3-2 vote—were erroneous. The lower courts mistakenly concluded that a strict reading of the burglary statute required a finding that the deli’s basement was a “dwelling.” By this reasoning, the courts construed the statutory provision in Penal Law § 140.00 defining “dwelling” to mean that, in all cases, if a part of a building is a “dwelling,” then the entire building is a “dwelling.” They ignored this Court’s long-ago holding that, “a part of a dwelling[] may be so severed from the rest of it” as to no longer constitute a dwelling. Quinn v. People, 71 N.Y. 561, 573 (1878) (emphasis added). Subsequent to the trial court’s decision, but prior to the ruling of the Appellate Division, this Court reaffirmed in People v. McCray, 23 N.Y.3d 621, 624 (2014), 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 aimed do not exist Here, the deli basement should not have been deemed a dwelling where Mr. Joseph’s actions never implicated the purpose underlying aggravated burglary of a “dwelling” because there was never any possibility that a resident in his/her home could have been terrorized or endangered defending his or her property. With 6 only an external door into and out of the basement via the sidewalk, there was no access of any kind between the deli basement and the apartments. Thus, Mr. Joseph at all times could be only either in the deli basement (where no one lived and which did not contain any resident’s property) or on the public street, which unquestionably is not part of any building, let alone a “dwelling.” For this reason, Mr. Joseph’s conviction for second-degree burglary should be reversed. Furthermore, Mr. Joseph’s convictions for second and third-degree burglary were both legally insufficient as to the element of intent. Pursuant to Penal Law §§ 140.20 and 140.25(2), for both second and third-degree burglary, the prosecution was required to prove beyond a reasonable doubt that Mr. Joseph had the “intent to commit a crime” when he entered the deli basement. However, any inference of such intent is belied by the circumstances of Mr. Joseph’s entry into the basement, which was through open doors under ordinary conditions, as well as by Mr. Joseph’s explanation that he went into the basement to search for his cell phone. Likewise, the surveillance video’s failure to depict Mr. Joseph acting in a way indicative of criminal intent further shows that this element was not established. Accordingly, the prosecution failed to meet its burden, and the convictions on both second and third-degree burglary should be reversed. 7 STATEMENT OF FACTS The Basement of the Greenleaf Deli The arrest of Ronel Joseph resulted from events in the sidewalk basement of the Greenleaf Deli, located on Manhattan’s Upper West Side on Amsterdam Avenue. T. 261-62, 322; A. 46-47, 107. The deli basement served as storage for the Greenleaf Deli’s soft drinks and waters. T. 326; A. 111. The retail space of the Greenleaf Deli was located above the deli basement at street level. T. 262; A. 47. Six floors of apartments were located above the deli. T. 263; A. 48. As the trial judge observed, “there was no testimony that you could get to the apartments” from the deli basement. T. 353; A. 138. In addition, one could not go from inside the deli to the deli basement without going outside to the sidewalk. It was undisputed at trial that the only way to enter or exit the deli basement was through two cellar-like doors that were flush with the sidewalk outside of the deli. The deli basement doors opened outwards onto the street in front of the Greenleaf Deli, and beneath the doors, a staircase descended into the basement. T. 269-70, 325-27; A. 54-55, 110-12. An iron rod was used to prop the doors open for the deli employees to access their storage space in the basement. T. 326- 27; A. 111-12. These sidewalk doors to the deli basement would be opened and 8 closed by the store employees throughout the day, but they were only locked when the deli was closed. T. 348; A. 133. Ronel Joseph Becomes Locked in the Basement of the Greenleaf Deli and Then Is Arrested. Ronel Joseph testified that, at approximately 8:30 p.m. on the evening of June 28, 2010, he finished work and was walking to meet a friend. T. 329-30, 369-70; A. 114-15, 154-55. On the way to meet his friend, Mr. Joseph walked down Amsterdam Avenue and past the Greenleaf Deli. Id. Both Mr. Joseph and Mr. Shorojit Roy, an employee of the Greenleaf Deli, testified that the doors to the deli basement were open as Mr. Joseph passed it. T. 332, 361, 372; A. 117, 146, 157. Mr. Roy explained that the doors were open because an employee had gone down to the deli basement to get bottled water for the deli. T. 332; A. 117. As Mr. Joseph explained, while he passed the Greenleaf Deli, he took out his cell phone to call his friend. T. 369-71; A. 154-56. He lost his grip and dropped the phone through the wide open sidewalk doors into the deli basement. T. 361, 370- 71, 374; A. 146, 155-56, 159. 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; A. 146, 160-61. 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; A. 147-48, 162-63. 9 Mr. Joseph testified that he did not find his phone in the deli basement. T. 363, 379-380; A. 148, 164-65. Police Officer Bradley Gore, the arresting officer, later vouchered a phone and a flashlight. T. 283, 289; A. 68, 74. Officer Gore initially testified that he “believe[d]” that the phone was recovered from Mr. Joseph. 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. There was inconsistent testimony about the recovery of a flashlight. 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 this flashlight over to the police. T. 344-45; A. 129-30. However, Officer Gore claimed that he personally found the flashlight in the basement. T. 283; A. 68. Mr. Joseph testified that the full-sized flashlight that was vouchered into evidence was not his flashlight. T. 377; A. 162. According to Mr. Joseph, three to four minutes after entering the basement to look for his phone, the doors above him closed. T. 361-62, 379; A. 146-47, 164. 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; A. 117, 120, 134. Mr. Roy authenticated a CD copy of the 10 closed-circuit television video taken of Mr. Joseph, and it was shown to the jury. T. 338, 342; A. 123, 127; People’s Ex. 10. That video does not show Mr. Joseph taking or even touching any merchandise in the deli basement; the video only shows Mr. Joseph looking around with his flashlight. People’s Ex. 10. Nor was there any allegation that Mr. Joseph took anything from the deli basement. T. 348; A. 133. Mr. Joseph testified that, after the doors closed, 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; A. 148, 164-65. 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; A. 107. During Mr. Joseph’s search in the deli basement, he never found his phone. See T. 381; A. 166. During the approximately eleven minutes that he remained in the deli basement, Mr. Joseph testified that he focused on finding a way out of the basement. T. 380-82; A. 165- 67. As the only exit from the deli basement was locked and Mr. Roy would not open the door, despite Mr. Joseph’s requests, Mr. Joseph was forced to wait until the doors were opened by the police. T. 349, 363; A. 134, 148. 2 Mr. Joseph stated that he never told Officer Gore that he did not want to go to jail. T. 383; A. 168. Mr. Joseph also testified that he had previously been convicted of several misdemeanors and three prior felonies. T. 369; A. 154. 11 After locking the doors, Mr. Roy returned to the inside of the Greenleaf Deli, where his younger colleague who, as Mr. Roy testified, “speaks better English than [he] do[es],” called the police. T. 335; A. 120. Officer Bradley Gore and his partner, Officer Alberto Natal, responded to the call and opened one of the doors. T. 270-71, 307; A. 55-56, 92. At Officer Gore’s request, Mr. Joseph climbed up the stairs and exited the deli basement, where he was placed on the ground, handcuffed and arrested for burglary. T. 272-73, 364; A. 57-58, 149. Officer Gore testified that when Mr. Joseph was handcuffed and placed under arrest for burglary he said: “I’m not going to jail.” T. 273; A. 58.2 As Officer Gore took Mr. Joseph to the police car, Officer Gore claimed that Mr. Joseph repeated the foregoing statement. T. 276; A. 61. Mr. Joseph testified that, during that time, he told Officer Gore that he had gone into the deli basement to look for his fallen phone. T. 365; A. 150. Officers Gore and Natal did not recall Mr. Joseph offering this explanation for being in the deli basement. T. 290-91, 315; A. 75-76, 100. An altercation ensued near the police car on Amsterdam Avenue, and Officer Gore stopped Mr. Joseph, who had moved away from the car, and sprayed 12 him with mace. T. 278-79; A. 63-64. As a result of the incident, Mr. Joseph suffered a broken arm. T. 280, 367-68; A. 65, 152-53. Eventually, Mr. Joseph was transported from the Greenleaf Deli to the police precinct. See T. 282; A. 67. 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 when he entered it; and (2) the fact that the deli basement did not constitute a “dwelling.” T. 351-53; A. 136-38. 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; A. 137-38. The trial court denied the motion to dismiss, relying upon a strict and 13 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; A. 138, 142. After Mr. Joseph testified, defense counsel renewed the motion to dismiss, which the court summarily denied. T. 391; A. 176. Jury Deliberations, Verdict and Sentence Even after being shown the video of Mr. Joseph in the deli basement during trial, the jury asked to rewatch the video several times during its deliberations. During its initial deliberations, the jury requested “to watch the video on the courtroom monitors” because the jurors “fe[lt] perhaps that they [were] better quality.” T. 487; A. 272. While the monitors did not work, the tape was replayed on the courtroom video screen. T. 491-93; A. 276-78. The jury also asked “that Mr. Joseph physically hold the flashlight in evidence in the manner shown in the video in front of the jury.” T. 489-90; A. 274-75. The judge denied that request because it was “not demonstrated during the trial.” T. 492; A. 277. On the second day of deliberations, the jurors requested and were allowed to take the video equipment into the jury room to enable them to “see the video in slow motion or possibly frame by frame.” T. 509-10; A. 294-95. Following their deliberations 14 that day, the jurors convicted Mr. Joseph of second and third-degree burglary, second-degree attempted escape and resisting arrest. T. 515-17; A. 300-02. Because Mr. Joseph had previously been convicted of a violent felony, Mr. Joseph’s conviction for second-degree burglary for his entry into the deli basement meant that he was declared a second violent felony offender. See S. 3-4, 11-12; A. 306-07, 314-15. Mr. Joseph received a determinate sentence of seven years of imprisonment and five years of post-release supervision for the second-degree burglary conviction. S. 11-12; A. 314-15. Mr. Joseph 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 count, with all sentences to be served concurrently. S. 12; A. 315. 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); A. 2. 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 3All justices concurred in the finding of legally sufficient evidence to support third-degree burglary. Joseph, 124 A.D.3d at 440; A. 7-8. 15 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; A. 3-4. 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; A. 6 (“‘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 deli basement was a dwelling. Joseph, 124 A.D.3d at 440; A. 6-7. Justice Sallie Manzanet-Daniels, joined by Justice Dianne Renwick, dissented in part,3 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 a resident’s attempt to defend property in the face of a burglar. Joseph, 124 16 A.D.3d at 440; A. 8. Therefore, the dissenters explained, 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; A. 10. 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 deli basement not a dwelling. Id. at 442; A. 11. Justice Manzanet-Daniels granted Mr. Joseph’s application for leave to appeal on April 21, 2015; A. 1. 17 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. Ronel Joseph was convicted of the second-degree burglary of a “dwelling,” despite the fact that the only place he entered was a vault-like basement of a deli which he accessed through double doors on the sidewalk outside of the deli which opened into a stairway descending into the basement. Because there were apartments on the floors above the deli, the Appellate Division majority concluded—notwithstanding the complete lack of connection or access between the deli basement and the apartments—that a strict reading of the burglary statute warranted a finding that the deli’s basement constituted a “dwelling.” This conclusion is both counterintuitive and contrary to this Court’s decisions in both People v. McCray, 23 N.Y.3d 621 (2014), and Quinn v. People, 71 N.Y. 561 (1878), which endorsed an exception to a strict and literal application of the burglary statute where the place burglarized is so detached and inaccessible from 18 the residential portion that the special dangers to which the second-degree burglary statute is targeted do not exist. Where the deli basement that Mr. Joseph entered lacked any connection, internal or external, with the apartments, and the only potential for contact between Mr. Joseph and any resident was on a public sidewalk, there was no enhanced danger, and the exception to the burglary statute applies. In ruling to the contrary, the Appellate Division majority misconstrued this Court’s decision in McCray to hold that the exception only applies to buildings that are “large.” However, this Court imposed no such requirement for the exception, but instead held that, consistent with the rationale for enhancing the penalty for the burglary of a dwelling, the dispositive factor is the potential for confrontation with a person in his or her dwelling. Moreover, adoption of a standard based on how “large” a building is would lead to overbroad application of the burglary statute and 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 Ronel Joseph’s conviction for second-degree burglary. 4As a result of the elevation of Mr. Joseph’s offense to second-degree burglary, he was declared a second violent felony offender and received a determinate sentence of seven years of imprisonment for burglarizing the deli basement. N.Y. Penal Law § 70.04(3)(b). With a conviction of third-degree burglary, Mr. Joseph would have received an indeterminate sentence with a range between three to six years and seven and one-half to fifteen years. N.Y. Penal Law § 70.06(3)(c), (4)(b). 19 A. The Exception to the Second-Degree Burglary Statute Clearly Applies Here, Given the Rationale That an Offense That Creates No Enhanced Danger to Residents Is Beyond the Statute’s Purpose. 1. The second-degree burglary statute targets offenses that create the “enhanced danger” characteristic of the burglary of a dwelling. There is a significant distinction in definition and treatment between second and third-degree burglary. Third-degree burglary is defined as occurring when a person “knowingly enters or remains unlawfully in a building with intent to commit a crime therein.” N.Y. Penal Law § 140.20. While a burglary of a “building” is defined as third-degree burglary, id., the more serious offense of burglarizing a “dwelling,” is defined as second-degree burglary. N.Y. Penal Law § 140.25(2) (“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, with a higher sentencing range. See N.Y. Penal Law §§ 70.02(1)(b), 70.04.4 20 A “dwelling” is defined in the second-degree burglary statute as “a building which is usually occupied by a person lodging therein at night.” N.Y. Penal Law § 140.00(3). Under the statute, a “building” has “its ordinary meaning,” but also includes the following: 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. N.Y. Penal Law § 140.00(2). The question of whether or not a building is a “dwelling” is dispositive in determining if a person’s unlawful entry or presence in a building, with the intent to commit a crime therein, will be subject to the harsher penalty of the second-degree burglary statute. There is no dispute about the reason why burglary of a dwelling is treated more severely. As this Court first made clear over 135 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, the Court reaffirmed Quinn’s statement of the rationale as being avoidance of “midnight terror” and confrontation with residents: 5In McCray, the Court analyzed the historical treatment of the burglary of a dwelling both at common law and after the 1878 decision in Quinn, following which the burglary statute went through several revisions over the years. McCray, 23 N.Y.3d at 626-28. The Court concluded that the exception, first endorsed in Quinn though not explicit in the language of the statue, is equally applicable to the current statute where the legislative purpose remains the same and there is no evidence that the legislature “has ever decided to reject the exception we described in Quinn.” Id. at 628. 21 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. McCray, 23 N.Y.3d at 627 (emphasis added). It is this “enhanced danger,” id., at which the statute is targeted, and this Court has consistently interpreted the statute in light of this underlying rationale.5 2. An exception to the literal language of the burglary statute applies where inaccessibility prevents any potential for the “enhanced danger” at which the statute is aimed. In light of the underlying principle for deeming a burglary of a dwelling more serious, this 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. Similarly, the Court has rejected the unqualified premise that an area is part of a dwelling if it is “under the same roof” and “within the same four walls,” id. at 565, and has “endorsed [an] exception because. . . in some cases applying the four walls and a roof rule would stretch the 22 statute beyond its purpose.” McCray, 23 N.Y.3d at 628. Thus, an exception to the literal language of the statute 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. 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. 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 23 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; A. 9. 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 majority 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 critical factor in either McCray or Quinn, but rather it was the potential, conspicuously absent in this case, for an encounter between the burglar and the residents in their dwellings that was determinative. 24 B. This Court’s Decisions in Both Quinn and McCray Demonstrate That the Inaccessible Deli Basement Did Not Constitute a “Dwelling.” The burglary of a “dwelling,” as analyzed by this Court in its two leading cases on the issue, People v. McCray and Quinn v. People, requires that the location burglarized be a place where people lodge overnight or that is accessible to such lodging quarters. If such access does not exist, the location is not a dwelling. Analysis of these two cases, more than 100 years apart, confirms this rule and supports the application of the burglary exception to this case. In Quinn, unlike in Mr. Joseph’s case, it was conceivable that the burglar could have confronted and “terrorized” a resident somewhere on the grounds of the building. Quinn involved a defendant who 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 though there was no internal connection between the residences and shop, because there was external connection, via the joint fenced-in yard, the shop-owner or any other resident could have encountered a burglar while on the private property of the residence. Also, had that happened, the shop-owner, who was also a resident, likely would have felt the need to “defend [his] property” in his yard. Id. at 567. Because there 25 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” with a “place of . . . repose,” Quinn, 71 N.Y. at 567, 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. Moreover, Quinn makes clear that connection, whether internal or external, is relevant to the critical question of access and the possibility for confrontation. Even at the time of Quinn, the Court considered the absence of both internal and external connection in determining if there had been a burglary of a dwelling. In its survey of cases at common law, which it noted was consistent with the then- statutory definition of dwelling burglary, the Court explained that structures lacking internal “communication,” like the dwelling-house at issue in Quinn, could still be found to be dwellings where there was external communication, such 26 as a shared yard, enclosure or curtilage. 71 N.Y. at 566 (noting that at common law 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”). For example, the Court examined a case (from Leach reporter) which was found to be a burglary of a dwelling 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.” Id. (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). Since the deli basement lacked either internal or external communication with the apartments above it, and thus 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. 27 Similarly, in McCray, in which the Court analyzed a defendant’s burglary of a building in midtown Manhattan containing Madame Tussaud’s Wax Museum and a Hilton Hotel above it, the Court’s decision focused on the connection and access between the place burglarized and the hotel guest rooms. The hotel contained a ground floor lobby, as well as a 14th floor lobby, with guest rooms beginning at the 17th floor, and the space in between the two lobbies was non- hotel space, including the wax museum. McCray, 23 N.Y.3d at 624. Two sets of stairways connected the upper hotel space to the ground level. Id. at 624-25. The defendant was convicted of burglarizing both the hotel employee locker room, accessible via a stairway from the 14th floor lobby, and the street-level wax museum. Id. With regard to the first burglary count, which pertained to the locker room, the Court noted that the locker room was a part of the hotel and 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 employee 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, which was much less near to the sleeping quarters of the hotel than the locker room, the fact that the defendant nonetheless could have accessed guest rooms via the 28 stairway that connected the wax museum with the upper hotel lobby and guest rooms was “just barely” sufficient to support a finding of second-degree burglary. Id. Evidence suggesting that the defendant had entered the wax museum via the hotel stairway, rather than from the street, was enough to persuade the Court that the ease of access between the two warranted 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. C. This Court Has Not Held That the Exception to the Second-Degree Burglary Statute Applies Only to Large Buildings, and to Do So Would Result in an Unwarranted Broadening of the Statute’s Application. Both Quinn and McCray turned on the question of accessibility, rather than, as the Appellate Division majority suggested, an undefined characterization of the buildings as “large.” 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 29 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; A. 3-4. However, while both McCray and Quinn note that the exception may be applicable in a large building because “midnight terror” is less likely in that context, neither holds that the exception only applies to large buildings. Instead, a location’s status turns on accessibility and the possibility of confrontation. In McCray, for example, the building housing the hotel and the wax museum was “large,” but the burglarized areas were still deemed a dwelling, given the presence of internal communication, in the form of staircases, between those areas and the guest rooms. 23 N.Y.3d at 630. This accessibility warranted a finding that there had been a burglary of a dwelling. However, even this direct access was held “just barely” enough to sustain the conviction as a burglary of a dwelling with regard to the wax museum count. Id. That access was the critical factor in McCray is indicated by the fact that the Court specifically noted that the identical set of facts as to the wax museum might have resulted in a finding of only third-degree burglary if the evidence had shown that the defendant entered the museum from the street and had never been in the stairwell shared with the hotel. Id. In other words, had there been no opportunity for access to the sleeping 30 quarters, even in a structure that was internally connected to the hotel by a stairway, the offense still might not have warranted a finding of second-degree burglary. Compared with the wax museum in McCray—which was found to constitute a dwelling by the smallest of margins—the deli basement is even less suggestive of a dwelling, given the impossibility of any encounter with residents in their homes or in any private area surrounding the apartments. It was access that was decisive in McCray, not size. Although 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. The Appellate Division’s claim about the meaning of this Court’s holding in McCray is premised on the unlikely notion that the Court would allow heightened legal culpability under the burglary statute to turn on something as subjective and ill-defined as whether or not a building is “large,” independent of any issues of access. As a practical matter, what constitutes a “large” building is not objective 6The Astor House, which opened in 1836 and is considered the first luxury hotel in New York City, was located on the west side of Broadway between Vesey and Barclay Streets. See https://en.wikipedia.org/wiki/Astor_House. It was a six-story building centered around a courtyard and contained 309 guest rooms. Id. For decades, it was the best known and most prestigious hotel in the country, lodging renowned literary figures and statesmen, including Abraham Lincoln. Id. The building was demolished in 1913. 31 or static. For example, the Court referenced in McCray the fact that the Astor House, which was cited in Quinn as an example of a building where the dwelling- house portions of it might be severable from the rest of the building, “is no longer the epitome of a large New York City building.” McCray, 23 N.Y.3d at 628. However, a building such as the Astor House, while certainly not a skyscraper, likely would not, even by today’s standards, be characterized as small given its 309 rooms.6 Criminal culpability should not turn on something as subjective and unforeseeable as whether a building will be characterized as “large.” Likewise, geographical differences could also result in fairly arbitrary differences in liability if large size is the determinant. In places lacking the numerous large, multi-story structures present in New York City, a defendant would have a greater likelihood of being deemed guilty of second-degree burglary for entering a location that is itself not a dwelling but is not far enough removed from one to avoid culpability for second-degree burglary. It simply would be unreasonable for the exception to be dependent on a finding that a building is “large.” While it is true that the Court noted in McCray 32 that “large” buildings can result in situations in which applying the general rule “does not make sense,” 23 N.Y.2d at 629, this hardly amounts to the creation of a per se rule that only large buildings create such a situation. Indeed, the potential lack of proximity to residents that can be present in a large building is relevant only as it relates to access, and the Court specifically held that “the ease of access from one place to another is at least equally important [as proximity.]” Id. at 630. Here, where there was a complete lack of internal or external communication between the deli basement and the apartments, and the only area of proximity was a public sidewalk, the deli basement did not qualify as a “dwelling.” * * * 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 second-degree burglary conviction lacks a required legal element. In order for a conviction to be legally sufficient, the prosecution must prove each element of the offense beyond a reasonable doubt; otherwise, the conviction 33 violates federal and state due process rights. See U.S. Const. amends. V, XIV; N.Y. Const. art. I, § 6; In re Winship, 397 U.S. 358, 364 (1970). Even viewing the evidence in the light most favorable to the prosecution, People v. Danielson, 9 N.Y.3d 342, 349 (2007), the prosecution failed to present legally sufficient proof because it failed to establish that the deli basement was a “dwelling.” Therefore, this Court must reverse Ronel Joseph’s second-degree burglary conviction. 34 POINT II RONEL JOSEPH’S CONVICTIONS OF SECOND AND THIRD- DEGREE BURGLARY WERE LEGALLY INSUFFICIENT WHERE THE EVIDENCE OF INTENT TO COMMIT A CRIME AT THE TIME OF HIS ENTRY INTO THE DELI BASEMENT WAS INADEQUATE, GIVEN MR. JOSEPH’S TESTIMONY, SUPPORTED BY THE SURVEILLANCE VIDEO, THAT HE ENTERED THE BASEMENT TO FIND HIS DROPPED CELL PHONE. The prosecution failed to prove beyond a reasonable doubt that Ronel Joseph had the “intent to commit a crime” in the deli basement at the time that he entered it. N.Y. Penal Law §§ 140.20, 140.25(2). As defense counsel argued, neither the video surveillance nor any of the testimony suggested that Mr. Joseph had any intent to commit a crime when entering the deli basement—in particular, there was no evidence that Mr. Joseph took or even attempted to take anything. T. 351-52; A. 136-37. In 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 with both burglary charges, “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 35 Court must reverse both of Mr. Joseph’s burglary convictions. See U.S. Const. amends. V, XIV; N.Y. Const. art. I, § 6. Mr. Joseph’s entry into the deli basement, even if unlawful and done so knowingly, did not constitute burglary unless he possessed the intent to commit a crime in the basement at the time that he entered. See People v. Gaines, 74 N.Y.2d 358, 360 (1989). The reason for this “contemporaneous intent” requirement is that the legislature intended burglary to be a more serious felony—rather than simply punishing the trespass and the attempted or consummated crime within a building—because of “the heightened danger posed when an unlawful intrusion into a building is effected by someone bent on a criminal end.” Id. at 362. Rather than demonstrating someone who entered the deli basement “bent on a criminal end,” the evidence showed, at most, someone who possibly developed an unlawful intent after entering the basement. That showing, however, does not constitute a burglary. In determining whether a defendant possessed the requisite intent at the time of an unlawful entry into a building, it is necessary to examine both the defendant’s conduct and the surrounding circumstances. See People v. Mackey, 49 N.Y.2d 274, 279 (1980). Absent here are the factors, such as evidence of forced or unusual entry, most often pointed to in support of a finding that a 36 defendant had such an intent. See, e.g., People v. Barnes, 50 N.Y.2d 375, 381 (1980) (evidence supported inference of defendant’s unlawful intent where defendant found hiding inside store that was an obvious target of looting and had smashed windows, and where defendant apparently had entered the store by straddling a two-foot ledge strewn with jagged glass); People v. Sterina, 108 A.D.3d 1088, 1090 (4th Dep’t 2013) (“violent nature of defendant’s entry into the home, including breaking down the door, forcing her way into the house, and immediately attacking the occupants, sufficiently establishe[d] her intent to commit a crime at the time of entry”); People v. Bergman, 70 A.D.3d 1494, 1494 (4th Dep’t 2010) (defendant’s use of force in “breaking the glass windows in two entryway doors” of a bar in the early hours of the morning supported an inference of intent); People v. Diaz, 53 A.D.3d 504, 505 (2d Dep’t 2008) (intent proven where defendant entered “locked management office of an apartment building” through a window at 4:00 a.m.); People v. Irrizary, 183 A.D.2d 630, 630 (1st Dep’t 1992) (defendant’s intent established where defendant “broke through the window of a coffee shop, and kicked open a locked door to the restaurant’s second floor” before apparently ransacking the inside). In contrast to the above cases, Mr. Joseph’s entry into the deli basement was not by force, in a suspicious manner, or at an unusual time. Rather, he merely 37 walked down into the basement through open doors during the deli’s normal business hours. Mr. Joseph explained that he entered the deli basement and looked around with a flashlight in search of his fallen cell phone. T. 362, 377-79; A. 147, 162-64. He further testified that, after he became locked in the basement, he shone the light around to try to find another exit—which, of course, did not exist. T. 380-82; A. 165-67. In his summation, defense counsel argued that the evidence showed that Officer Gore had vouchered Mr. Joseph’s cell phone, which supported Mr. Joseph’s explanation. T. 421; A. 206; see also T. 289; A. 74 (Officer Gore testimony regarding vouchering the cell phone). 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 Greenleaf Deli. T. 429-30; A. 214-15. Instead, as Mr. Roy’s testimony confirmed, Mr. Joseph was not alleged to have taken anything from the deli basement. T. 348; A. 133. Clearly, the evidence that Mr. Joseph had an intent to commit a crime when he entered the basement was lacking. None of the other evidence directly refutes Mr. Joseph’s testimony that he went into the deli basement to search for his phone. Mr. Joseph testified that he told Mr. Roy from the Greenleaf Deli and Officer Gore that he had been looking for his phone. T. 363, 379-80; A. 148, 164-65. The fact that these witnesses 38 testified that they did not remember hearing Mr. Joseph’s explanation does not controvert that it was given. Mr. Roy could have misunderstood what Mr. Joseph was saying to him as Mr. Joseph called out to Mr. Roy from inside the basement. As a native Bengali-speaker, Mr. Roy testified through an interpreter that he only understood “a little” English. T. 322; A. 107 (emphasis added). As further evidence of his limited English, Mr. Roy admitted that his younger colleague, who “speaks better English that [he] do[es]” was the one to call the police. T. 335; A. 120. With regard to Officers Gore and Natal, neither remembered exactly what Mr. Joseph did or did not say. Rather, they simply did not “recall” him making any statements about his phone. T. 291, 315; A. 76, 100. Similarly, Mr. Joseph’s testimony that he used a small flashlight, of the kind a person would carry on a key-chain, T. 362; A. 147, supports that he entered the deli basement simply to find his fallen phone and not because of some plan to commit a crime. A key-chain flashlight was never found or produced into evidence, but Mr. Joseph’s testimony on the subject was not directly refuted either. While another flashlight was found inside the deli basement, Mr. Joseph stated that the flashlight found in the deli basement was not his. T. 377; A. 162. The prosecution did not offer evidence connecting that flashlight to Mr. Joseph. Moreover, the testimony was inconsistent as to who actually found the flashlight 39 that was recovered. Compare T. 344; A. 129 (Mr. Roy: “The people who work in the morning, when they came and took out the coffee cups from the carton, they found [the flashlight] there . . . next day [after June 28, 2010] around twelve noon.”) with T. 283; A. 68 (Officer Gore: “I found a blue flashlight in a box in the basement.”). Accordingly, the most reliable evidence regarding a flashlight is Mr. Joseph’s testimony that he used a key-chain flashlight to help him search for his fallen phone in the dark deli basement. In addition, the events that occurred after Mr. Joseph exited the deli basement, including his struggle with police during his arrest, do not show that Mr. Joseph had the requisite intent when he entered the deli basement. Mr. Joseph arguably committed non-criminal trespass—which does not require intent to commit a crime within a building. N.Y. Penal Law § 140.05 (“A person is guilty of trespass when he knowingly enters or remains unlawfully in or upon premises.”). Mr. Joseph’s consciousness of guilt of that offense may have prompted his response to the police, but these later actions during his arrest do not suffice to show that he had the requisite intent to commit a crime contemporaneously with his earlier entry into the deli basement. Even assuming that the evidence was sufficient to show that Mr. Joseph developed a larcenous intent once he was inside the deli basement, that showing 40 does not establish burglary. A subsequent, opportunistic development of intent would establish a different offense. For burglary, however, the intent to commit a crime must accompany the trespass, and a person “who simply trespasses with no intent to commit a crime inside a building does not possess the more culpable mental state that justifies punishment as a burglar.” Gaines, 74 N.Y.2d at 362. Where this required intent was not proven by the prosecution, Mr. Joseph’s convictions for second and third-degree burglary must be reversed. 41 CONCLUSION For the reasons stated above, 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 September 30, 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