The case of Webster v Ragona, reads like a law school examination fact pattern. The facts of the case were as follows: the defendant, Walter Peeters owned adjacent parcels of land. He sold parcel A to the defendant, Ragona, together with an easement along the driveway which cut between the two parcels leading to a parking area in the rear of the property. Before the easement was recorded, Peeters sold parcel B to the plaintiff, Webster. Additionally, the warranty deed from Peeters to Webster omitted any reference to the easement. Webster, however, had actual knowledge of the easement's existence.
The issue on appeal was whether Webster possessed a claim against Peeter based upon the deed covenants (it had been previously determined, in an earlier appeal, that the Ragona's despite not having recorded the easement, were able to continue using it due to the fact that Webster had actual knowledge of the easement). The Court, citing an ancient Court of Appeals case held that the plaintiff's actual knowledge of the easement did not provide the defendant with a defense to the cause of action for breach of their deed covenants (see Callanan v Keenan, 224 NY 503, 508 [1918]). While peculiar, this case establishes the strength of the deed covenants -- they are actionable even if you have notice that they are being breached when you purchase the property.
As an additional matter, the Court addressed a issue of first impression, and held that the plaintiffs could recover counsel fees incurred in quieting title. While the law is well-settled that a "grantee forced to defend title warranted by the grantor may recover legal fees," here, the plaintiffs commenced action against the Ragona's, and not the grantor. After stating that the law was unsettled with respect to this novel issue, the Court held that where "the covenantees had a reasonable basis to presume the action would be successful," counsel fees may be awarded.
Thursday, May 24, 2007
Criminal Law: Conviction of Depraved Indifference Murder May Be Upheld Despite Acquittal on Intentional Murder for Point Blank Shooting
Can a point blank shooting logically result in an acquittal of intentional murder and, yet, form the basis for a conviction of depraved indifference murder? Apparently, yes. In People v Carter, the Third Department tackled this strange issue.
Following an evening of alcohol consumption, the defendant began jawing with another bar patron, when defendant repeatedly hit-on said patron's female companions. Ultimately, defendant was escorted out of the bar. When the patron later left the bar with his companions, defendant was standing outside. Defendant then pulled out a gun and fired eight shots -- at point blank range -- at the patron. Four of the bullets fired struck the victim, killing him. Miraculously, no one else was hit. Following a jury trial, defendant was acquitted of intentional murder, but was convicted of depraved indifference murder.
Due to the fact that defendant failed to preserve the issue of whether the evidence supported only an intentional murder charge and, not a depraved indifference charge, the Court did not reach it. The Court did, however, address the weight of the evidence issue. Defendant argued that point blank shooting of an individual could only be intentional murder.
The Court disagreed. But before it did, it pointed to the fact that the presence of third persons is insufficient to convert an intentional homicide directed at a particular person into depraved indifference murder unless the others are actually endangered. The Court also noted that the greater number of shots fired, the more likely it becomes that there was an intent to kill (i.e. intentional murder). Although the circumstances of this case certainly cut in favor of the defendant, the Court, nevertheless, held that the jury's conclusion in this case was rational.
While the Court obviously acknowledged that the jury could have concluded that this was intentional murder, due to the fact that defendant had an argument with the victim, waited outside the bar and fired eight shots at him, hitting him with four bullets, it also concluded that the jury could have rationally concluded that the killing of the victim was not intended by the defendant, but rather the product of his depraved indifference. To rationally reach that conclusion, the jury would have had to conclude that defendant was intoxicated, was lying in wait outside the bar in hopes of being allowed back in to consume more alcohol, that a friend handed him a gun while he was waiting outside the bar and that he wildly shot the gun as a show of bravado, not intending to harm anyone. Practically speaking, this is a stretch, as common sense would tell us that anyone that waits outside a bar awaiting an individual he had just argued with (to the point of being thrown out of the establishment), pulled out a gun and, at point blank range, fired eight shots, killing the victim and harming no one else, intended to kill said victim.
In addition to leaving this case scratching your head, one should probably come away with this: weight of the evidence arguments are extremely difficult to win.
Following an evening of alcohol consumption, the defendant began jawing with another bar patron, when defendant repeatedly hit-on said patron's female companions. Ultimately, defendant was escorted out of the bar. When the patron later left the bar with his companions, defendant was standing outside. Defendant then pulled out a gun and fired eight shots -- at point blank range -- at the patron. Four of the bullets fired struck the victim, killing him. Miraculously, no one else was hit. Following a jury trial, defendant was acquitted of intentional murder, but was convicted of depraved indifference murder.
Due to the fact that defendant failed to preserve the issue of whether the evidence supported only an intentional murder charge and, not a depraved indifference charge, the Court did not reach it. The Court did, however, address the weight of the evidence issue. Defendant argued that point blank shooting of an individual could only be intentional murder.
The Court disagreed. But before it did, it pointed to the fact that the presence of third persons is insufficient to convert an intentional homicide directed at a particular person into depraved indifference murder unless the others are actually endangered. The Court also noted that the greater number of shots fired, the more likely it becomes that there was an intent to kill (i.e. intentional murder). Although the circumstances of this case certainly cut in favor of the defendant, the Court, nevertheless, held that the jury's conclusion in this case was rational.
While the Court obviously acknowledged that the jury could have concluded that this was intentional murder, due to the fact that defendant had an argument with the victim, waited outside the bar and fired eight shots at him, hitting him with four bullets, it also concluded that the jury could have rationally concluded that the killing of the victim was not intended by the defendant, but rather the product of his depraved indifference. To rationally reach that conclusion, the jury would have had to conclude that defendant was intoxicated, was lying in wait outside the bar in hopes of being allowed back in to consume more alcohol, that a friend handed him a gun while he was waiting outside the bar and that he wildly shot the gun as a show of bravado, not intending to harm anyone. Practically speaking, this is a stretch, as common sense would tell us that anyone that waits outside a bar awaiting an individual he had just argued with (to the point of being thrown out of the establishment), pulled out a gun and, at point blank range, fired eight shots, killing the victim and harming no one else, intended to kill said victim.
In addition to leaving this case scratching your head, one should probably come away with this: weight of the evidence arguments are extremely difficult to win.
Thursday, May 17, 2007
Labor Law: Is the Failure to Allege the Existence of a Safety Device that would have Prevented an Accident Fatal to a 240[1] Claim?
In a a case sure to be heard by the Court of Appeals, the Third Department -- over two dissents -- affirmed the dismissal of the plaintiff's claim pursuant to Labor Law 240(1) arising out of the plaintiffs fall from a stack of steel trusses laying on a flat bed truck (Berg v Albany Ladder Co., (slip op. May 17, 2007). The facts of the case were simple: plaintiff was helping to unload steel trusses from a flatbed truck, when the trusses gave way and slid forward, causing the plaintiff to fall to the ground -- approximately 10 feet -- sustaining numerous injuries.
Writing for the majority, Justice Lahtinen, opined that "in the absence of some risk-enhancing circumstance that a statutory device would address, the special statutory protection [of Labor Law 240(1)] does not apply to a worker falling from the back of a truck or trailer." In concluding that the plaintiff failed to state a claim under 240(1), the majority first observed that, while the plaintiff did not technically fall from a truckbed (he fell from trusses placed on the truckbed), he had been able to safely ascend and descend from the position prior to the accident. It placed special emphasis, however, on the fact that the plaintiff acknowledged that there were no particular safety devices that could have prevented the accident. Based upon the fact that there were no alleged safety devices that were lacking, the majority concluded that the accident did not involve "the special risks protected by Labor Law 240(1)" and, thus, occurred as a result of the ordinary dangers present at construction sites.
Presiding Justice Cardona, penned a dissenting opinion (joined by J. Mugglin), taking issue with the majority's holding on the distinct issue of the Labor Law 240(1) claim. The dissent, asserted that on account of the fact that there were elevation differentials, the distance between the work surface and the ground was relevant (here about 10 feet). Insodoing, the dissent differentiated the Court of Appeals decision in Toefer v Long Island Railroad, 4 NY3d 399 [2005]. The Toefer decision stood for the principle that workers that fall from a truckbed (4-5 feet off the ground), may not -- as a matter of law -- recover under Labor Law 240(1), because it is not the sort of "elevation-related risk" contemplated by the statute. Here, the dissent accurately pointed out that the plaintiff here, did not fall from a truck bed, but, rather, from a bundle of trusses perched atop a truck bed (a total height of 10 feet).
The dissent also found that plaintiff's failure to identify a particular safety device that would have prevented the accident was not determinative. Moreover, the dissent found that had a safety device been provided, the plaintiff could have avoided climbing atop the trusses to complete the job (citing Worden v Solvay Paperboard, LLC, 24 AD3d 1187, 1188 [2005] [holding that a safety device, such as a lift, ladder or harness would have allowed the claimant from climbing on construction materials perched on a truck bed, and thus, claimant's resulting injury was the sort contemplated by the statute]).
Insofar as there is a 3-2 split, the Court of Appeals will likely hear the case (if the Appellant decides to do so). If so, the Court will have to engage in more judical line-drawing with respect to Labor Law 240(1). The interesting issue is whether the Court of Appeals will insert this new requirement, advocated by the majority, mandating dismissal if the claimant in a Labor Law 240(1) is unable to point to a specific safety device that would have prevented the accident.
Writing for the majority, Justice Lahtinen, opined that "in the absence of some risk-enhancing circumstance that a statutory device would address, the special statutory protection [of Labor Law 240(1)] does not apply to a worker falling from the back of a truck or trailer." In concluding that the plaintiff failed to state a claim under 240(1), the majority first observed that, while the plaintiff did not technically fall from a truckbed (he fell from trusses placed on the truckbed), he had been able to safely ascend and descend from the position prior to the accident. It placed special emphasis, however, on the fact that the plaintiff acknowledged that there were no particular safety devices that could have prevented the accident. Based upon the fact that there were no alleged safety devices that were lacking, the majority concluded that the accident did not involve "the special risks protected by Labor Law 240(1)" and, thus, occurred as a result of the ordinary dangers present at construction sites.
Presiding Justice Cardona, penned a dissenting opinion (joined by J. Mugglin), taking issue with the majority's holding on the distinct issue of the Labor Law 240(1) claim. The dissent, asserted that on account of the fact that there were elevation differentials, the distance between the work surface and the ground was relevant (here about 10 feet). Insodoing, the dissent differentiated the Court of Appeals decision in Toefer v Long Island Railroad, 4 NY3d 399 [2005]. The Toefer decision stood for the principle that workers that fall from a truckbed (4-5 feet off the ground), may not -- as a matter of law -- recover under Labor Law 240(1), because it is not the sort of "elevation-related risk" contemplated by the statute. Here, the dissent accurately pointed out that the plaintiff here, did not fall from a truck bed, but, rather, from a bundle of trusses perched atop a truck bed (a total height of 10 feet).
The dissent also found that plaintiff's failure to identify a particular safety device that would have prevented the accident was not determinative. Moreover, the dissent found that had a safety device been provided, the plaintiff could have avoided climbing atop the trusses to complete the job (citing Worden v Solvay Paperboard, LLC, 24 AD3d 1187, 1188 [2005] [holding that a safety device, such as a lift, ladder or harness would have allowed the claimant from climbing on construction materials perched on a truck bed, and thus, claimant's resulting injury was the sort contemplated by the statute]).
Insofar as there is a 3-2 split, the Court of Appeals will likely hear the case (if the Appellant decides to do so). If so, the Court will have to engage in more judical line-drawing with respect to Labor Law 240(1). The interesting issue is whether the Court of Appeals will insert this new requirement, advocated by the majority, mandating dismissal if the claimant in a Labor Law 240(1) is unable to point to a specific safety device that would have prevented the accident.
Criminal Law: "I Didn't Know..." is different from "It wasn't"
The Third Department has, for the second time this year, visited the issue of classifying "dangerousness" with respect to contraband in the charge of promotion of prison contraband in the first degree (People v Sylvester, [slip op. May 17, 2007]). In Sylvester, the defendant was the wife of an inmate in a State correctional facility, who ingeniously secreted three cellular telephones in a typewritter she mailed to her husband. When her husband was later discovered in possession of one of the cell phones, the game was up. Subsequently, the defendant was charged with promoting prison contraband in the first degree, to which she pleaded guilty to attempted promoting prison contraband in the first degree. While the defendant's arguments were unpreserved for appellate review, the Court nevertheless discussed the issues raised, the most important of which dealt with the "dangerous" element of the crime.
To be convicted of promoting prison contraband in the first degree, it must be proven that the defendant, knowingly and unlawfully made, obtained or possessed any dangerous contraband. The question raised by the defendant was whether her acknowledgment during the allocution "I didn't know it was dangerous contraband" negated an element of the crime, in light of the Third Department's holding in People v Pagan. (36 AD3d 1163 [2007]). In Pagan, the defendant pleaded guilty to attempted promoting prison contraband in the first degree for possessing a cellular telephone. At his allocution, he admitted to possessing the cell phone, but refused to admit that a cell phone was dangerous. The Third Department held, that the defendant's plea had to be vacated because he negated an essential element of the crime, i.e. that the cell phone was dangerous. The Court further explained that, unlike a weapon, whose dangerousness can be inferred, other objects not so blatantly dangerous must be established as such. Thus, the defendant's refusal to acknowledge that the cell phone was dangerous, in the absence of any evidence giving rise to an inference of dangerousness, mandated that his plea be vacated.
Distinguishing Pagan from the case at bar, the Court held that lack of knowledge that an item is dangerous is not the equivalent of refusing to admit that the contraband possessed is, in fact, dangerous. One wonders when cell phones will be definitively categorized, one way or another, lest these strange cases continue to pile up.
This all overlooks one potentially interesting legal argument. There is a mens rea element to this crime, knowingly. Ostensibly, the defendant failed to raise this argument, as the Court did not discuss it. If it had, I submit that the mens rea element should be read to modify both the possession/making of the contraband, and that it is dangerous as proscribed by law. In fact, such a result would be of great necessity, since no one seems to know what contraband is dangerous and what is not. Since the defendant specifically stated during allocution that she did not know cellular telephones were dangerous -- a proposition that the Third Department agreed with in People v Pagan -- her plea should have been vacated.
To be convicted of promoting prison contraband in the first degree, it must be proven that the defendant, knowingly and unlawfully made, obtained or possessed any dangerous contraband. The question raised by the defendant was whether her acknowledgment during the allocution "I didn't know it was dangerous contraband" negated an element of the crime, in light of the Third Department's holding in People v Pagan. (36 AD3d 1163 [2007]). In Pagan, the defendant pleaded guilty to attempted promoting prison contraband in the first degree for possessing a cellular telephone. At his allocution, he admitted to possessing the cell phone, but refused to admit that a cell phone was dangerous. The Third Department held, that the defendant's plea had to be vacated because he negated an essential element of the crime, i.e. that the cell phone was dangerous. The Court further explained that, unlike a weapon, whose dangerousness can be inferred, other objects not so blatantly dangerous must be established as such. Thus, the defendant's refusal to acknowledge that the cell phone was dangerous, in the absence of any evidence giving rise to an inference of dangerousness, mandated that his plea be vacated.
Distinguishing Pagan from the case at bar, the Court held that lack of knowledge that an item is dangerous is not the equivalent of refusing to admit that the contraband possessed is, in fact, dangerous. One wonders when cell phones will be definitively categorized, one way or another, lest these strange cases continue to pile up.
This all overlooks one potentially interesting legal argument. There is a mens rea element to this crime, knowingly. Ostensibly, the defendant failed to raise this argument, as the Court did not discuss it. If it had, I submit that the mens rea element should be read to modify both the possession/making of the contraband, and that it is dangerous as proscribed by law. In fact, such a result would be of great necessity, since no one seems to know what contraband is dangerous and what is not. Since the defendant specifically stated during allocution that she did not know cellular telephones were dangerous -- a proposition that the Third Department agreed with in People v Pagan -- her plea should have been vacated.
Monday, May 14, 2007
Civil Practice: High-Low Agreements are Settlements and Treated as Such for Enforcement Purposes
In Cunha v Shapiro, (__ AD3d ___ [slip op. May 1, 2007]), the Second Department, answered two questions of first impression. The first question was whether high-low agreements -- when triggered -- are settlements or judgments. The second question, that necessarily followed was, if a high-low agreement is considered a settlement, do the provisions of CPLR 5003-a apply? The Court ultimately determined that high-low agreements, when triggered, are considered settlements and, as such, are regulated by the enforcement provisions of CPLR 5003-a.
Of relevance, the parties in this case entered into a high-low agreement prior to the damages phase of their trial. Specifically, the parties agreed that regardless of the jury's ultimate verdict, the damage award would not be lower than $75,000 and no more than $325,000. Naturally, if the jury rendered a verdict in between said amounts, its decision would be controlling. When the jury returned a verdict of $400,000, the high-low agreement was triggered, and plaintiff was entitled to $325,000. The dispute arose, when the plaintiff refused to execute a general release and stipulation of discontinuance and filed a judgment with interests, costs and disbursements.
Briefly digressing, CPLR 5003-a was enacted to promote prompt payment of damages arising out of a settlement. It provides that if a defendant fails to pay the agreed to amount of damages within 21 days of tender of settlement papers (including release and stipulation of discontinuance), then the plaintiff may file a judgment, which may include interest, statutory costs and disbursements. Caselaw interpreting the statute, has held that where a judgment is filed prematurely, where the release contains an inaccurate recitation of the damages or, where the plaintiff fails to tender a release and stipulation of discontinuance, the plaintiff's judgment may be vacated and he/she is not entitled to interest thereon.
The threshold question in this case was, therefore, whether the triggering of the high-low agreement was a settlement (5003-a potentially applies) or a verdict (5003-a does not apply, interest, costs and disbursements automatic). The Court, began its task by examining how the courts of the state have referred to high-low agreements. According to the Court, the cases referring to high-low agreements as settlements were legion. On the other hand, it could not find a single reference to a high-low agreement as a judgment. This line of reasoning is a little stretched, because passing references to high-low agreements by courts in other decisions may have been unintentional or inartful, especially in light of the fact that none of the cases cited examined the foundational question of whether a high-low agreement that has been triggered was in fact a settlement.
Next the Court pointed to the language used by the trial court, which -- according to the Court -- was analogous to a settlement. Namely, the trial court stated that "the case would be settled based on the jury verdict." Furthermore the trial court stated that there would be no appeals or post-trial motions on the issue of damages. Again, as with the initial rationale, it appears as though the Court were reaching for a result here. The Court's empasis on what the trial court -- in this case -- stated does not necessarily result in the conclusion that all triggered high-low agreements are settlements. While the Court could have used the trial court's language to make a decision tailored to the case before it, it is submitted that simply because the trial court stated that there would be no appeals and that the jury's verdict would settle the lawsuit (the outcome of all cases) should not lead to the conclusion that all triggered high-low agreements are settlements.
The final rationale offered by the Court in support of its holding was that high-low agreements were "consistent with our understanding of what settlements are designed to accomplish." After defining settlement, by quoting Black's Law Dictionary, the Court held that when a jury verdict is supplanted by the high-low agreement (i.e. the damage award is increased or reduced in keeping with the agreement), the parties, rather than the jury are determining the award. According to this rationale, since the parties are determining the award, it is a settlement, rather than a judgment.
Thus, due to the fact that high-low agreements have been referred to as settlements by the courts of the state in the past, in addition to the fact that the trial court here used language akin to normal terms of a settlement and because triggered high-low agreements behave like settlements, the Court concluded that triggered high-low agreements are settlements. All in all, the decision lies on pretty squishy legal ground, and one might argue that this was a results-based decision. Nevertheless, the Court has spoken and high-low agreements that are triggered will be considered settlements (at least within the Second Department). Taking this rationale to its next logical conclusion, the converse must also be true: a high-low agreement that is not triggered (as would have been the case here, if the jury returned a verdict between $75,000 and $325,000) is not a settlement, but rather a judgment.
Having decided the issue of whether triggered high-low agreements are settlements, it was largely a foregone conclusion that they would be subject to CPLR 5003-a. The Court did, however, include one final discussion which will likely have a great effect on all high-low agreements, for the Court held that parties to a high-low agreement can agree to exempt it from the dictates of CPLR 5003-a. Thus, one can be rest-assured that nearly all high-low agreements in the wake Cunha will exempt the CPLR 5003-a requirements, and counsel for the plaintiff would be best served by doing so.
Of relevance, the parties in this case entered into a high-low agreement prior to the damages phase of their trial. Specifically, the parties agreed that regardless of the jury's ultimate verdict, the damage award would not be lower than $75,000 and no more than $325,000. Naturally, if the jury rendered a verdict in between said amounts, its decision would be controlling. When the jury returned a verdict of $400,000, the high-low agreement was triggered, and plaintiff was entitled to $325,000. The dispute arose, when the plaintiff refused to execute a general release and stipulation of discontinuance and filed a judgment with interests, costs and disbursements.
Briefly digressing, CPLR 5003-a was enacted to promote prompt payment of damages arising out of a settlement. It provides that if a defendant fails to pay the agreed to amount of damages within 21 days of tender of settlement papers (including release and stipulation of discontinuance), then the plaintiff may file a judgment, which may include interest, statutory costs and disbursements. Caselaw interpreting the statute, has held that where a judgment is filed prematurely, where the release contains an inaccurate recitation of the damages or, where the plaintiff fails to tender a release and stipulation of discontinuance, the plaintiff's judgment may be vacated and he/she is not entitled to interest thereon.
The threshold question in this case was, therefore, whether the triggering of the high-low agreement was a settlement (5003-a potentially applies) or a verdict (5003-a does not apply, interest, costs and disbursements automatic). The Court, began its task by examining how the courts of the state have referred to high-low agreements. According to the Court, the cases referring to high-low agreements as settlements were legion. On the other hand, it could not find a single reference to a high-low agreement as a judgment. This line of reasoning is a little stretched, because passing references to high-low agreements by courts in other decisions may have been unintentional or inartful, especially in light of the fact that none of the cases cited examined the foundational question of whether a high-low agreement that has been triggered was in fact a settlement.
Next the Court pointed to the language used by the trial court, which -- according to the Court -- was analogous to a settlement. Namely, the trial court stated that "the case would be settled based on the jury verdict." Furthermore the trial court stated that there would be no appeals or post-trial motions on the issue of damages. Again, as with the initial rationale, it appears as though the Court were reaching for a result here. The Court's empasis on what the trial court -- in this case -- stated does not necessarily result in the conclusion that all triggered high-low agreements are settlements. While the Court could have used the trial court's language to make a decision tailored to the case before it, it is submitted that simply because the trial court stated that there would be no appeals and that the jury's verdict would settle the lawsuit (the outcome of all cases) should not lead to the conclusion that all triggered high-low agreements are settlements.
The final rationale offered by the Court in support of its holding was that high-low agreements were "consistent with our understanding of what settlements are designed to accomplish." After defining settlement, by quoting Black's Law Dictionary, the Court held that when a jury verdict is supplanted by the high-low agreement (i.e. the damage award is increased or reduced in keeping with the agreement), the parties, rather than the jury are determining the award. According to this rationale, since the parties are determining the award, it is a settlement, rather than a judgment.
Thus, due to the fact that high-low agreements have been referred to as settlements by the courts of the state in the past, in addition to the fact that the trial court here used language akin to normal terms of a settlement and because triggered high-low agreements behave like settlements, the Court concluded that triggered high-low agreements are settlements. All in all, the decision lies on pretty squishy legal ground, and one might argue that this was a results-based decision. Nevertheless, the Court has spoken and high-low agreements that are triggered will be considered settlements (at least within the Second Department). Taking this rationale to its next logical conclusion, the converse must also be true: a high-low agreement that is not triggered (as would have been the case here, if the jury returned a verdict between $75,000 and $325,000) is not a settlement, but rather a judgment.
Having decided the issue of whether triggered high-low agreements are settlements, it was largely a foregone conclusion that they would be subject to CPLR 5003-a. The Court did, however, include one final discussion which will likely have a great effect on all high-low agreements, for the Court held that parties to a high-low agreement can agree to exempt it from the dictates of CPLR 5003-a. Thus, one can be rest-assured that nearly all high-low agreements in the wake Cunha will exempt the CPLR 5003-a requirements, and counsel for the plaintiff would be best served by doing so.
Thursday, May 10, 2007
Criminal Law: Can the Unlawful Entry Element of Burglary Be Satisfied When the Building is Open to the Public?
Relying on People v Taylor, 190 AD2d 628 [1993], the Appellate Division, Third Department held that a defendant's conviction for burglary in the third degree was supported by legally sufficent evidence, despite the fact that the underlying intent to commit a crime occurred in a building open to the public (People v Carter, slip op. May 10, 2007). In Carter, the defendant was charged with burglary in the third degree after being discovered rummaging through a desk drawer in the offices of a comprehensive day and residential facility for the developmentally disabled. The building where the crime allegedly occurred was open to the public, thus raising an interesting question...how can one unlawfully enter a building open to the public?
Naturally, if the building had been closed for the evening or the weekend, one could easily establish that the entry was unlawful. However, that was not the case in Carter, because the alleged burglary apparenly occurred during business hours (i.e. while the building was open the public). Defendant siezed upon this seeming oxymoronic circumstance and argued that his conviction was not supported by legally sufficient evidence. After all, it would be a legal impossibility to unlawfully enter a building open to the public (the same holds true with respect to unlawfully remaining therein, as the factual circumstances establish that when apprehended, the building was still open to the public).
Penal Law § 140.00 [5], however, offers an explanation for this apparently strange circumstance. Said section of the Penal Law states that persons entering or remaining in a building open to the public, have a license to do so. This license, however, only extends to those portions of the building actually open to the public. Thus, where a section of an otherwise public building is off-limits to the general public, entry into restricted areas can be considered an unlawful entry. With the clarification offered by Penal Law § 140.00[5], the unlawful entry element can be objectively satisfied.
However, the inquiry does not end there, because the First Department has injected a subjective element into burglaries that take place in public buildings. In People v Taylor, the only case cited by the Third Department here, the First Department held that a defendant must be aware that he is in an area of a public building that is restricted. There, the First Department held that it was "reasonable to infer . . . that defendant was aware that he entered the building unlawfully" because security guards were standing in the lobby with a register for visitors to sign, there were rope partitions directing visitors to register and save for one door, all other entrances to the building were locked with 'closed' signs displayed on them. By citing this case, the Third Department has therefore, tacitly accepted the proposition that a subjective element -- knowledge that the area is restricted -- is contained in Penal Law § 140.00 [5].
With respect to legal sufficiency, the Third Department held that signs indicating that visitors must register upon entrance, that defendant failed to register, that he entered a "much less-travelled" area of the building and that he entered the victim's office through an open door that read "CSEA office" established the element of unlawful entry.
Naturally, if the building had been closed for the evening or the weekend, one could easily establish that the entry was unlawful. However, that was not the case in Carter, because the alleged burglary apparenly occurred during business hours (i.e. while the building was open the public). Defendant siezed upon this seeming oxymoronic circumstance and argued that his conviction was not supported by legally sufficient evidence. After all, it would be a legal impossibility to unlawfully enter a building open to the public (the same holds true with respect to unlawfully remaining therein, as the factual circumstances establish that when apprehended, the building was still open to the public).
Penal Law § 140.00 [5], however, offers an explanation for this apparently strange circumstance. Said section of the Penal Law states that persons entering or remaining in a building open to the public, have a license to do so. This license, however, only extends to those portions of the building actually open to the public. Thus, where a section of an otherwise public building is off-limits to the general public, entry into restricted areas can be considered an unlawful entry. With the clarification offered by Penal Law § 140.00[5], the unlawful entry element can be objectively satisfied.
However, the inquiry does not end there, because the First Department has injected a subjective element into burglaries that take place in public buildings. In People v Taylor, the only case cited by the Third Department here, the First Department held that a defendant must be aware that he is in an area of a public building that is restricted. There, the First Department held that it was "reasonable to infer . . . that defendant was aware that he entered the building unlawfully" because security guards were standing in the lobby with a register for visitors to sign, there were rope partitions directing visitors to register and save for one door, all other entrances to the building were locked with 'closed' signs displayed on them. By citing this case, the Third Department has therefore, tacitly accepted the proposition that a subjective element -- knowledge that the area is restricted -- is contained in Penal Law § 140.00 [5].
With respect to legal sufficiency, the Third Department held that signs indicating that visitors must register upon entrance, that defendant failed to register, that he entered a "much less-travelled" area of the building and that he entered the victim's office through an open door that read "CSEA office" established the element of unlawful entry.
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