People v. Czerminski

94 A.D.2d 957, 464 N.Y.S.2d 83, 1983 N.Y. App. Div. LEXIS 18438

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 25, 1983
• Status: Published

Opinions

. Judgment affirmed. Memorandum: This appeal from a conviction for burglary, third degree (Penal Law, § 140.20), arises from an incident in which defendant, a police officer, while on duty and investigating what appeared to be a warehouse break-in, misappropriated two shovels and six driveway sealer applicators, worth about $10. We reject defendant’s contention that his conviction must be reversed for failure of proof of a necessary element of the crime — viz., that he knowingly entered or remained unlawfully in or upon the premises — because his presence on the premises was privileged. Defendant’s privilege as a police officer, like that of a fireman and unlike that of a person entering or remaining in or upon the premises open to the public who has a statutory privilege (Penal Law, § 140.00, subd 5; see People v Brown, 25 NY2d 374, 376), depends upon the purpose for which he enters or remains in or upon the property (see, generally, McGee v Adams Paper & Twine Co., 26 AD2d 186, 191, affd 20 NY2d 921; People v Manzi, 21 AD2d 57, 59, 60; Beedenbender v Midtown Props., 4 AD2d 276, 281). If the purpose is the performance of his public duty, the actions are privileged. If there is no such public purpose (as in the case of a policeman or a fireman remaining on property in order to commit a theft), there clearly can be no privilege. It was for the jury to determine whether at some point after his initial entry, which the People concede was privileged, defendant’s purpose in remaining on or re-entering the premises was unrelated to the performance of his public duties and therefore unlawful (see People v Powell, 58 NY2d 1009). All concur, except Denman and Green, JJ., who dissent and vote to modify the judgment, in the following memorandum.