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holding "[s]ince the garage in the present case was structurally part of a building which was used for overnight lodging of various persons, it must be considered as part of a dwelling"
Summary of this case from State v. WillsOpinion
June 20, 1988
Appeal from the Supreme Court, Kings County (Deeley, J.).
Ordered that the judgment is affirmed.
The evidence adduced at trial establishes that on July 22, 1983, at approximately 6:30 A.M., the defendant forcibly took property from the victim, after he had unlawfully entered into the garage of her residence at 1208 Eastern Parkway, Brooklyn, New York. On appeal, the defendant argues that since the evidence reveals that there was no interconnecting doorway between the victim's garage and her house, the garage was not part of a "dwelling", so that the People failed to prove an essential element of burglary in the second degree (Penal Law § 140.25; § 140.00 [3]).
The defendant did not raise this specific argument either at the time of his motion to dismiss at the close of the People's case or at the time of his motion to dismiss at the close of the trial. This argument was, however, raised at the time of sentencing. Assuming, without necessarily deciding, that the issue is, under these circumstances, reviewable as a matter of law (but see, People v Bynum , 70 N.Y.2d 858 ; People v Gomez, 67 N.Y.2d 843; People v Dekle, 56 N.Y.2d 835; People v Stahl, 53 N.Y.2d 1048; People v Cardona, 136 A.D.2d 556, lv denied 70 N.Y.2d 1004; People v Patel, 132 A.D.2d 498, lv denied 70 N.Y.2d 935), we conclude that the defendant's argument is without merit.
Pursuant to the definition of the term "building" contained in the Penal Law § 140.00 (2), the victim's garage, which was located under her house, must be considered part of the main building. Penal Law § 140.00 (2) provides that "[w]here a building consists of two or more units separately secured or occupied, each unit shall be deemed * * * a part of the main building". In accordance with this definition, we have previously held that an attached garage may be considered as part of the main house and thus as part of a "dwelling" within the meaning of Penal Law § 140.25 (2) (see, People v Stevenson, 116 A.D.2d 756, 757, lv denied 67 N.Y.2d 890).
We are not persuaded by the argument that People v Stevenson (supra) should not be considered controlling because, in that case, the garage in question was linked to the main residence by an interconnecting door. Other courts, interpreting similar statutes, have rejected such a distinction and have held that an attached garage, even without an interconnecting door, constitutes part of the main dwelling (see, e.g., People v Moreno, 158 Cal.App.3d 109, 204 Cal.Rptr. 17; Burgett v State, 161 Ind. App. 157, 314 N.E.2d 799 [basement which was not directly accessible from living area held part of dwelling]; see also, Jones v State, 690 S.W.2d 318 [Tex App]; White v State, 630 S.W.2d 340 [Tex App]; People v Coutu, 171 Cal.App.3d 192, 217 Cal.Rptr. 191). Since the garage in the present case was structurally part of a building which was used for overnight lodging of various persons, it must be considered as part of a dwelling (see also, People v Ivory, 99 A.D.2d 154, 156 [hallway in apartment building constitutes dwelling]).
Turning to the defendant's remaining contentions, we find that the defendant's argument concerning the alleged repugnancy of the jury's verdict has not been preserved for appellate review (see, People v Satloff, 56 N.Y.2d 745, 746, rearg denied 57 N.Y.2d 674) and is, in any event, meritless (see, People v Tucker, 55 N.Y.2d 1, rearg denied 55 N.Y.2d 1039). There is also no merit to the defendant's contention that he was improperly sentenced as a second felony offender (see, People v Depeyster, 115 A.D.2d 613; People v Sirianni, 89 A.D.2d 775).
The defendant's remaining contentions have also been examined and are found to be equally meritless. Bracken, J.P., Kunzeman, Rubin and Spatt, JJ., concur.