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.