Opinion
10-19-2017
The PEOPLE of the State of New York, Respondent, v. Randy SWINSON, Defendant–Appellant.
Rosemary Herbert, Office of the Appellate Defender, New York (Eunice C. Lee of Counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Samuel Z. Goldfine of Counsel), for respondent.
Rosemary Herbert, Office of the Appellate Defender, New York (Eunice C. Lee of Counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Samuel Z. Goldfine of Counsel), for respondent.
The evidence adduced at trial was legally insufficient to support defendant's conviction of burglary in the first degree. Even viewed in the light most favorable to the People, the evidence did not support an inference that defendant harbored the intent to commit a crime "contemporaneous with the entering or remaining" in the premises (see People v. Jones, 184 A.D.2d 383, 384, 585 N.Y.S.2d 382 [1st Dept.1992] ).Testimony established that defendant and complainant wife married in August 2008. While the couple listed the residence as their address, defendant did not reside there on a permanent basis and was not a tenant of record. On the day of the incident, after being allowed into the premises the night before, when asked to leave the premises, defendant refused to do so, assaulted the complainant and damaged property in the premises.
Defendant does not assert that he had a right to be in the marital residence and concedes that his prior license to be in the premises is not dispositive of his right to be there at the time of the incident. Defendant argues, however, that he could not be deemed to have committed burglary where the request to leave and subsequent assault was part of an escalating dispute. We agree.
A person is guilty of burglary in the first degree when he or she "knowingly enters or remains unlawfully in a dwelling with intent to commit a crime therein" and "[c]auses physical injury to any person who is not a participant in the crime" ( Penal Law § 140.30[2] ).
"The purpose of the burglary statute is to protect against the specific dangers posed by entry into secured premises of intruders bent on crime" ( People v. Thompson, 116 A.D.2d 377, 380, 501 N.Y.S.2d 381 [2d Dept.1986] ). The " ‘remains unlawfully’ language" was "principally intended to address circumstances involving an ‘unauthorized remaining in a building after lawful entry’ " ( People v. Konikov, 160 A.D.2d 146, 152, 559 N.Y.S.2d 901 [2d Dept.1990], lv. denied 76 N.Y.2d 941, 563 N.Y.S.2d 70, 564 N.E.2d 680 [1990], citing People v. Gaines, 74 N.Y.2d 358, 362, 547 N.Y.S.2d 620, 546 N.E.2d 913 [1989] ).
Here, the evidence, viewed in the light most favorable to the People, does not support the inference that defendant harbored the intent to assault the complainant when she ordered him to leave. Rather, a reasonable inference to be drawn from the events surrounding the assault is that defendant spontaneously committed violence, which does not fall within the intended scope of the burglary statute (see People v. Green, 24 A.D.3d 16, 18–19, 803 N.Y.S.2d 225 [3d Dept.2005] ; People v. Bowen, 17 A.D.3d 1054, 1055, 794 N.Y.S.2d 203 [4th Dept.2005], lv. denied 5 N.Y.3d 759, 801 N.Y.S.2d 254, 834 N.E.2d 1264 [2005] ). In light of the foregoing, we need not reach defendant's remaining argument.
ACOSTA, P.J., RENWICK, WEBBER, OING, and MOULTON, JJ., concur.