People v. Gaines

147 A.D.2d 891

Opinions

Judgment affirmed. Memorandum: Defendant appeals from his conviction of burglary in the third degree and petit larceny, asserting that the court erred in refusing to instruct the jury that, in order to find defendant guilty of burglary, it would have to find that he had the intent to commit the crime of larceny at the time of his unlawful entry into the building. Instead, the court charged, in the terms of the statute (Penal Law § 140.20), as follows:

"A person is guilty of burglary in the third degree when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein. * * *

"[FJourth, that at the time of his unlawful entry or remaining he intended to commit a crime within the building * * * the crime of burglary is complete when a person knowingly and unlawfully enters or remains in a building with the intent at that time to commit a crime therein.”

That was a correct charge. A person enters or remains unlawfully when he has no license or privilege to be there (see, People v King, 61 NY2d 550, 554).

The dissenters would parse the statute so as to drain it of its conventional and long-recognized meaning.

All concur, except Lawton and Davis, JJ., who dissent and vote to reverse, Davis J., in the following memorandum.