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Mens Rea: The Intent To Violate An Order Of Protection May Constitute The Mens Rea Element Of Burglary


criminal appeals lawyer, mens rea, burglary, violation of order of protection

People v. Cajigas

19 N.Y.3d 697

New York Court of Appeals

Decided on: October 23, 2012

Blog By: Stephen N.Preziosi Esq., Criminal Appeals Lawyer

Issue: Whether or not the intent to violate the Order of Protection will constitute a mens rea element of burglary where absent the Order or Protection no crime would have been intended.

Summary: Maria obtained an Order of Protection against Cajigas. Maria’s daughter was home alone when she saw Defendant attempting to unlock the front door. She asked him what he wanted and Cajigas backed away from the house. Defendant was indicted for attempted burglary in the second degree and several counts of criminal contempt in the first degree.

See Also: Wade And The Photo Array Identification: Defining Suggestiveness And The Presence Of A Third Party During The Photo Array Process

At trial, Defense argued that the violation of the Order of Protection couldn’t be used to prove an element of burglary and the intent to commit a crime therein. Defense counsel stated that the mens rea element couldn’t be satisfied by an intention to commit an act that would not be illegal absent the Order of Protection. Supreme Court denied that motion and instructed the jury that the intent element is established if Defendant intended to violate a provision in the order other than the restriction prohibiting him from going to Maria’s apartment. The jury convicted Defendant on all counts and the Appellate Division affirmed.

The Court of Appeals held that the precise charge depends on the nature and severity of the violation. But the fact that the Defendant’s actions would have been legal but for the issuance of the Order of Protection does not immunize such conduct from prosecution under these statutes. Even an act that would otherwise not be illegal can be viewed as a crime and the intent to commit this act inside a building may be used to prove a burglary charge.

Holding: The Court of Appeals held that the Defendant’s attempt to go inside Maria’s home constitutes an unlawful entry since going to a protected person’s home even by invitation or permission contravenes the terms of the Order of Protection.

Actions that violate aspects of an Order of Protection may be prosecuted as criminal contempt in the second degree, criminal contempt in the first degree or aggravated criminal contempt.

The Court of Appeals held that the precise charge depends on the nature and severity of the violation. The fact that the Defendant’s actions would have been legal but for the issuance of the Order of Protection does not immunize such conduct from Prosecution under these statutes. Hence, even an act that would otherwise not be illegal can be viewed as a crime and the intent to commit this act inside a building may be used to prove a burglary charge.

Facts: Defendant, Norman Cajigas, became abusive and eventually physically assaulted his ex paramour, Maria. After the incident, Maria obtained an Order of Protection against him. Defendant was required to refrain from contacting her in any manner and to stay away from her residence and place of work. Defendant violated that order by going to her house. As he approached the door, Maria’s daughter was home alone and watched Defendant attempting to unlock the front door. When she saw Defendant and asked him what he wanted, Defendant backed away and she called the Police.

     Cajigas was indicted for attempted burglary in the second degree and several counts of criminal contempt. At trial Defense counsel argued that People v. Lewis, 5 N.Y.3d 566, 807 N.Y.S.2d 1, 840 N.E.2d 1014 2005, and its progeny prevented the People from using a violation of the Order of Protection to prove two elements of burglary and the intent to commit a crime therein. Defense argues that the mens rea element could not be satisfied by an intention to commit an act that would not be illegal; such as attempting to communicate with Maria and her daughter absent the proscriptions of the Order of Protection. Supreme Court denied that motion and instead, instructed the jury that the intent element is established if Defendant intended to violate a provision in the order other than the restriction prohibiting him from going to Maria’s apartment. The jury convicted Defendant on all counts. The Appellate Division affirmed and the Court of Appeals granted Defendant leave to Appeal.

The Court of Appeals held that an Order of Protection can be used to establish a knowing an unlawful entry since going to a protected person’s home, even by invitation or permission contravenes the terms of the Order of Protection. Hence, even an act that would otherwise not be illegal can be viewed as a crime and the intent to commit the act inside a building may be used to prove a burglary charge. The Court of Appeals affirmed the Appellate Division’s order.

Legal Analysis: The Court of Appeals held that Burglary is a trespass into a building coupled with the intent to commit a crime therein Penal Law § 140.20. Trespass occurs when the entry is knowingly unlawful. An Order of Protection, which typically requires a person to stay away from a victim’s home or place of employment and to refrain from any contact, can be used to establish a knowing an unlawful entry since going to a protected person’s home even by invitation or permission contravenes the terms of the Order of Protection.

     In this case, Defendant violated the Order of Protection by going to Maria’s home while he was ordered to stay away. Defendant walked up to Maria’s home and he attempted to open the front door. On appeal, Defendant argues that the intent element of burglary cannot be satisfied by intended conduct that would be innocuous if the Order of Protection did not prohibit it. The People, in contrast, argue that a burglary conviction might be premised on intent to engage in conduct that would be legal if an Order of Protection did not outlaw it.

The Court of Appeals held that the People are not required to prove the particular crime that Defendant intended to commit inside the burglarized structure. Actions that violate aspects of an Order of Protection may be prosecuted as criminal contempt in the first degree, criminal contempt in the second degree or aggravated criminal contempt. The Court held that the precise charge depends on the nature and severity of the violation. But the fact that the Defendant’s actions would have been legal but for the issuance of the Order of Protection does not immunize such conduct from Prosecution under these statutes. Even an act that would otherwise not be illegal can be viewed as a crime and the intent to commit this act inside a building may be used to prove a burglary charge, People v. Lewis.

The Court of Appeals held that they are mindful that an attempted or completed burglary premised on a violation of an Order of Protection may result in the prosecution of a relatively serious offense.

In setting the classifications of these offenses, the Legislature was most likely concerned that domestic violence and stalking were too prevalent and needed to be deterred with meaningful penal consequences, including those attendant to a burglary conviction. As the facts of this case demonstrate, perpetrators of these offenses frequently engage in persistent and often escalating courses of conduct that cause victims to be emotionally terrorized if not worse.

     The Court of Appeals held that they could conceive of scenarios under which punishments like this case arguably could be viewed as disproportionate to the offense, such as when a paramour goes to the victim’s home at that person’s request. In these instances, prosecutorial discretion comes into play. Identifying where cases fall on the spectrum of seriousness ranging from a misdemeanor crime to a violent felony offense with mandatory prison time is a fundamental component of the District Attorney’s inherent discretion to file an appropriate charge at the outset of a prosecution, People v. Mattocks, 12 N.Y.3d 326, 334, 880 N.Y.S.2d 888, 908 N.E.2d 878 2009. Accordingly, the Court of Appeals affirmed the Appellate Division’s order.


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