The Court of Appeals has upheld a burglary conviction that required it to review—for the first time since 1878— whether breaking into a non-residential part of a building that has residential units qualifies as a break-in of a dwelling.
In People v. McCray, 118, the court found the evidence against Lionel McCray, who broke into a locker room at the Madame Tussaud’s Wax Museum in a building that also houses the Hilton Times Square Hotel in Manhattan, was “just barely” sufficient to sustain a conviction for second-degree burglary.
McCray argued that the crime he committed was third-degree burglary, not the more serious offense of burglarizing a dwelling that resulted in a 15-year prison term. Third-degree burglarly carries a maximum penalty of seven years.
In a decision last week, the court revisited and reaffirmed its 19th century holding in Quinn v. People, 71 NY 561, that a burglary occurring in any part of a building that contains a dwelling constitutes a home invasion—unless the building is large and the burglary takes place in a portion remote and inaccessible to living quarters.
Here, Judge Robert Smith said for the unanimous court, the locker room and wax museum were indeed a good distance from the hotel guest rooms. But he said the defendant was in two stairways that provided enough access to sleeping quarters to warrant the second-degree burglary conviction.
Chief Judge Jonathan Lippman (See Profile) and Judges Victoria Graffeo (See Profile), Susan Phillips Read (See Profile), Eugene Pigott Jr. (See Profile), Jenny Rivera (See Profile) and Sheila Abdus-Salaam (See Profile) joined the opinion.
Mark Baker, of counsel to Brafman & Associates, represented McCray pro bono on behalf of the Criminal Appeals Clinic at Benjamin N. Cardozo School of Law. Manhattan Assistant District Attorney Sheryl Feldman argued for the prosecution.