A Fire Damaged Home That Had Been Unoccupied for Eight Months and Was the Subject of a Vacate Order Remained a "Dwelling" and Could Be the Basis for a Criminal Trespass Conviction—Hurricane Sandy Damage

Following a jury trial, the defendant had been convicted of "Criminal Trespass in the Second Degree…and acquitted of Burglary in the Second Degree…and related charges." The defendant had moved to set aside the guilty verdict, arguing that "the building that he was convicted of illegally entering does not constitute a ‘dwelling’ as defined by Penal Law §140.00 (3)." The issue involved "the definition of a dwelling under the trespass and burglary statute where the [NYC Dept. of Buildings (DOB)] issues [a Vacate Order (Order)] associated with a home damaged in a fire." The court had to determine whether the damaged home constituted "a ‘building’" that was "usually occupied by a person lodging therein at night" "even though…no one actually slept at the home at night during an 8-month period in which [an Order] was in effect." The issue was "important given the precipitous increase in burglary-related offenses arising from alleged looting of flood-damaged homes…during the immediate aftermath of Hurricane Sandy…." The court denied the defendant’s motion to set aside the guilty verdict.