People v. Torres

162 A.D.2d 385, 556 N.Y.S.2d 920, 1990 N.Y. App. Div. LEXIS 7847

Opinion

Judgment, Supreme Court, New York County (Budd G. Goodman, J.), rendered May 20, 1988, which convicted defendant, after a jury trial, of burglary in the second degree and sentenced him, as a second violent felony offender, to an indeterminate prison term of from 6 to 12 years, unanimously affirmed.

On August 27, 1989, defendant was observed by a tenant pushing a metal device into the cylinder locks of the entrance doors to two apartments.

On appeal defendant asserts that the hallway in which he was observed was not a dwelling but a public place. Therefore, it is urged that all the elements of the crime of burglary were not met. We do not agree.

The term dwelling is defined by Penal Law § 140.00 (3) as a "building” which is usually occupied by a person lodging therein at night. People v McCurdy (86 AD2d 493, 497-498 [2d Dept 1982]) recognized that while hallways of multioccupant dwellings are often of a public nature, the hallway of a brownstone with a locked front door should be considered part of the dwelling. The apartment building in question is six stories, but also was locked at the front door and was equipped with a buzzer and intercom system. There was also a "No Trespassing” sign in both English and Spanish posted at the entrance.

More recently, in People v Rodriquez (159 AD2d 201 [1st Dept 1990]), we held that the first-floor stairwell of a housing project separated from the lobby by a door was open only to building residents and their invitees.

Defendant’s remaining claims relating to summation comments, none of which was preserved (CPL 470.05 [2]), nonetheless, are meritless. Concur—Murphy, P. J., Kassal, Ellerin, Smith and Rubin, JJ.