New York Appellate Lawyer

48 Wall Street, 5th Floor, New York, NY 10005

Federal Criminal Appeals Throughout The United States and
New York State Criminal Appeals.

Located at 48 Wall Street, 5th Floor, New York, NY! 1-800-APPEALS (277-3257)

Punishing Burglaries: Defining The Crime Of Home Burglaries


Criminal Appeals lawyer: Burglary Of A Dwelling

People v. McCray

2014 NY Slip Op 04232

New York Court Of Appeals

Decided on: June 12, 2014

Multipurpose Buildings Are All The Same For Determining Burglaries. 

See Also: The Criminal Mind: What Constitutes Proof Of Conscious Objectives

Summary: Security spotted Defendant on video breaking into a locker room of a Hilton Hotel that was located inside a large building that contained a hotel and a wax museum. Security spotted Defendant walking down the stairway to the hotel section to get to the wax museum. Defendant was arrested existing the building with stolen property.

A jury convicted Defendant of two counts of burglary in the second degree. On Appeal, Defendant claims that the burglaries were in the third degree, not second-degree because the building was not a dwelling. The Court Of Appeals found that a dwelling is defined as a building, which is usually occupied by a person lodging therein at night. In general, burglary of a party residential building is a burglary of a dwelling.

Issue: Whether the burglary of a building containing both a Hotel and a wax museum can be considered the burglary of a dwelling.

Holding: The Court of Appeals held that the Hilton Hotel and the Wax Museum is considered a dwelling of the building in which Defendant broke into. A dwelling is a building that is usually occupied by a person lodging therein at night. Penal Law § 140.00(3). The Court Of Appeals held that in general,  burglary of a partly residential building is a burglary of a dwelling.

Facts: Security spotted Defendant on video breaking into a locker room of a Hilton Hotel that was located inside a large building. Security spotted Defendant walking down stairway from the locker room to the 16th floor. There was evidence that showed Defendant passing the 16th floor where hotel guest’s rooms were to get to the wax museum.

In the wax museum, the video showed Defendant sliding a box along the floor and putting things into it. Defendant then existed the building outside where he was subsequently arrested with stolen property. A jury convicted Defendant of two counts of burglary in the second degree. On Appeal, Defendant did not dispute the evidence to support his conviction but claims that the burglaries were in the third degree because the building was not a dwelling. The Court Of Appeals held that in general, a burglary of a partly residential building is a burglary of a dwelling.

Legal Analysis: The Court Of Appeals held that the first burglary took place in a locker room that was part of the hotel. Defendant went through the locker room passing the 16th floor which containing guest rooms. Defendant then entered the wax museum. The Court Of Appeals held, in general, burglary of a partly residential building is a burglary of a dwelling, even if the burglar enters only the non-residential part.

There is little hesitation to conclude that the risk of the guests were a burglary of a dwelling; when a burglar comes this close to rooms in which people are sleeping.

In Quinn v. People 71 NY 561 1878, the rule that burglary of a dwelling occurs whenever a burglar enters a place ‘within the same four outer walls, and under the same roof applies in this case. When the crime is committed in close contiguity with a place of repose, even though the place of the burglary and the sleeping quarters are not instantly accessible to each other; a more serious crime is committed then a building where no one lives. Thus explaining Defendant’s burglary is defined as a burglary of a dwelling. The Court Of Appeals affirmed Defendant’s conviction for burglary in the second-degree.