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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 154
The People &c.,
            Respondent,
        v.
Ronel Joseph,
            Appellant.




          Eunice C. Lee, for appellant.
          Diane N. Princ, for respondent.




MEMORANDUM:
          The order of the Appellate Division should be modified
by vacating the conviction on the count of burglary in the second
degree, dismissing that count in the indictment, and remitting to
Supreme Court for resentencing, and as so modified, affirmed.
          On the evening of June 28, 2010, defendant entered the
basement of the Greenleaf Deli in Manhattan.   The deli was

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located on the ground floor of a seven-story building, with six
floors of residential apartments above it.   The basement, which
was only accessible through two cellar doors located on the
public sidewalk adjacent to the deli, was used to store deli
merchandise.   There was no access from the basement to any part
of the residential units of the building, or to the deli itself.
The apartment residents did not have access to the basement and
only deli employees were permitted to enter the basement.      An
employee observed defendant on the deli's surveillance monitor
enter the open doors to the deli basement and walk around the
basement with a flashlight.   The employee went outside, closed
and locked the basement doors and called 911.     The police
arrived, asked defendant to climb out of the basement, and, after
a struggle, arrested him.
            Defendant was charged, by indictment, with one count
each of burglary in the second degree (Penal Law § 140.25 [2]),
burglary in the third degree (Penal Law § 140.20), resisting
arrest (Penal Law § 205.30) and attempted escape in the second
degree (Penal Law §§ 110; 205.10 [2]).   At trial, at the close of
the People's case, and again after defendant testified, defense
counsel moved to dismiss the burglary charges, arguing, among
other things, that the deli basement was not a "dwelling" for
purposes of second degree burglary because there was no testimony
that one could get into the building or into the deli from the
basement.   The trial court denied the motions.   A jury convicted


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defendant on all charges.   He was sentenced as a second violent
felony offender to an aggregate prison term of seven years to be
followed by five years of postrelease supervision.
          A majority of the Appellate Division affirmed,
rejecting defendant's argument that his conviction for second
degree burglary should be vacated (124 AD3d 437 [2015]).    The
majority relied on this Court's decision in People v McCray (23
NY3d 621 [2014]), where we reaffirmed the common law rule
established in Quinn v People (71 NY 561 [1878]):
          "[I]f a building contains a dwelling, a
          burglary committed in any part of that
          building is the burglary of a dwelling; but
          an exception exists where the building is
          large and the crime is committed in a place
          so remote and inaccessible from the living
          quarters that the special dangers inherent in
          the burglary of a dwelling do not exist (23
          NY3d at 625).
The majority rejected defendant's argument that the exception to
the general rule applied, reasoning that although the
inaccessibility requirement appeared to have been met, the
exception was inapplicable because the building was not large.
The dissent concluded that the exception applied and that there
had not been a burglary of a dwelling because the basement was
"entirely sealed off and inaccessible from the residences above"
(124 AD3d at 440-441).   The dissent disagreed with the majority
that the exception recognized in McCray only applied to "large"
buildings, and instead, concluded that, "[w]hile a building's
size may inform the determination as to whether the residential


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elements were accessible, size per se is not a dispositive
factor"(id. at 441).
           Burglary in the third degree is committed when a
person "knowingly enters or remains unlawfully in a building with
intent to commit a crime therein" (Penal Law § 140.20).   Penal
Law § 140.25 (2) elevates third degree burglary to second degree
burglary when "[t]he building is a dwelling."   A dwelling is "a
building which is usually occupied by a person lodging therein at
night" (Penal Law § 140.00 [3]).   "Where a building consists of
two or more units separately secured or occupied, each unit shall
be deemed both a separate building in itself and a part of the
main building" (Penal Law § 140.00 [2]).   This Court explained in
People v Quattlebaum (91 NY2d 744 [1998]), that the increased
penalty for burglary of a dwelling was designed to prevent
"midnight terror" and the "danger to human life, growing out of
the attempt to defend property from depredation" (91 NY2d at 747,
quoting Quinn).   Of note, in 1981, the legislature eliminated any
nighttime element for burglary of a dwelling (L 1981, ch 361).
In McCray, this Court pointed out that "a burglary of a dwelling
is a more serious crime than other burglaries [because] an
intrusion into a home or an overnight lodging, is both more
frightening and more likely to end in violence" (id. at 627).
"[T]hese dangers are created in significant degree when the crime
is committed 'in close contiguity' with a 'place of repose' even
though the place of the burglary and the sleeping quarters are


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not instantly accessible to each other" (id. at 627, quoting
Quinn).   But this Court observed in McCray that the legislature
had not authorized "a conviction for burglary of a dwelling where
the burglar neither comes nor readily can come near to anyone's
living quarters" (McCray at 628).   In this case, given the
isolation of the basement itself from the rest of the building,
as well as the noncontiguous relationship of the basement to the
residential units of the building, defendant did not come, nor
could he have readily come near to the residences.
           In McCray, where the burglaries had occurred in a hotel
and connected museum, we noted that in large buildings,
situations can arise in which applying the general rule -- that
burglary of a partly residential building is burglary of a
dwelling even if the burglar enters only the nonresidential part
-- does not make sense.   However, contrary to the People's
argument, McCray did not impose a requirement that a building
must be "large" in order for the exception to apply.   The size of
the building may be a factor when considering whether the
residential units of the building are remote and inaccessible,
but a building being a "large" size, especially given the
subjective nature of the word "large," is not a dispositive
factor.
           Under the narrow circumstances of this case,
application of the general rule as to what constitutes a dwelling
in a mixed residential and commercial building within the meaning


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of Penal Law § 140.00 (2) is not warranted.   Defendant, from a
public sidewalk, entered the open cellar doors into a basement
that was both entirely disconnected from the building and
completely inaccessible to the residences in that building.    The
basement was not contiguous to any residential units.   Notably,
in Quinn, where this Court upheld the burglary conviction
although there was no internal access between the shop which the
burglar entered and the living quarters in the building, there
was a yard accessible from the shop, and the living quarters
could be reached by going into the yard and then up stairs (71 NY
at 565).    Thus, although there was no "internal communication"
(id. at 573) between the store and the living quarters, Quinn's
act of breaking into the store was "likely to cause alarm and to
lead to personal violence and so endanger human life" (id.).       In
contrast, here, the deli basement was both inaccessible to, and
remote from, the residential apartments.   It was inaccessible
because defendant could not go anywhere into the building from
the basement.    He could not reach the deli or the apartments.
All that he could reach from the basement was the public
sidewalk.   The basement was remote given that it was not used by
the residents for any purposes and that there was no proof of any
relationship between that space and the residents.   In sum, there
was no "close contiguity" (Quinn at 567) between the basement and
the dwellings.   Under these facts, "the special dangers inherent
in the burglary of a dwelling do not exist" (McCray at 624).


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          Upon consideration of the evidence in this case, we
conclude that the evidence was legally insufficient to support
defendant's conviction of burglary in the second degree.
Defendant's further contention that the evidence was legally
insufficient to support his conviction for burglary in the third
degree is without merit.




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People v Ronel Joseph
No. 154




STEIN, J.(dissenting):
             I would affirm defendant's conviction for burglary in
the second degree.    The basement that defendant illegally entered
was part of a dwelling and, although the residential portions of
the building were inaccessible from the basement, they were not
remote.   Thus, the judicially-created exception to Penal Law §
140.00 (2) is inapplicable here, and the statutory definition of
a dwelling should prevail.
             A person commits burglary in the second degree when he
or she "knowingly enters or remains unlawfully in a building with
intent to commit a crime therein" and "[t]he building is a
dwelling" (Penal Law § 140.25 [2]).      The principal element in
dispute in the instant case is whether the basement at issue is a
dwelling.1    The statute defines a dwelling as "a building which
is usually occupied by a person lodging therein at night" (Penal
Law § 140.00 [3]).    The statute also provides that "[w]here a
building consists of two or more units separately secured or
occupied, each unit shall be deemed both a separate building in


     1
       Defendant also argues that the People failed to prove his
intent to commit a crime in the basement, but that argument is
unpersuasive (see People v Samuels, 99 NY2d 20, 24 [2002];
People v Cabey, 85 NY2d 417, 421-422 [1995]).

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itself and a part of the main building" (Penal Law § 140.00 [2]).
As noted by the majority, the building at issue here contains a
basement, a deli on the first floor, and six floors of
separately-occupied residential apartments above the deli.    The
apartments are clearly dwellings.    Therefore, strictly applying
the statute to the facts here, every part of the building --
including the basement -- is considered part of a dwelling (see
Penal Law § 140.00 [2], [3]).
          In 1878, this Court explained that the statutory
definition of a dwelling, as related to the crime of burglary,
differed from the common-law definition because the statute did
not include out-buildings such as barns within the meaning of
dwelling, even if they were enclosed within the same fenced yard
as a residence (see Quinn v People, 71 NY 561, 570-572 [1878]).
However, the statutory definition of a dwelling included all
rooms "under the same roof and within the same four walls" as
sleeping quarters, even if those other rooms were used for
business purposes (id. at 573).     When interpreting the burglary
statute, we divined the legislature's intent to include such
rooms as part of a dwelling -- even if there was no internal
connection to the residential portion of the building -- as being
premised on the likelihood that breaking into any part of the
same structure may be likely to "rouse the occupant of the
sleeping-room, and draw him forth to an encounter, and liability
to death or injury, in defense of his goods" (id. at 572).     Thus,


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we explained that the
          "essence of the crime of burglary at common
          law is the midnight terror excited, and the
          liability created by it of danger to human
          life, growing out of the attempt to defend
          property from depredation. It is plain that
          both of these may arise, when the place
          entered is in close contiguity with the place
          of the owner's repose, though the former has
          no relation to the latter by reason of
          domestic use or adaptation" (id. at 567).
          Under the facts of Quinn, breaking into a shop on the
first floor of a building constituted burglary of a dwelling
because the second floor contained sleeping quarters, even though
there was no internal communication between the two floors and
the occupants of the second floor had to go outside, descend an
external staircase, and enter an exterior door to reach the first
floor shop.   Although we found burglary of a dwelling in that
case, in an effort to "ward off misapprehension" or a fear that
the statutory definition could be applied too broadly, the Court
acknowledged that there may be situations in which, for purposes
of the crime of burglary, the residential portion of a building
that also contained multiple businesses may be deemed severed
from the business portion due to the large size of the building
and the lack of any internal connection between the living
quarters and the businesses (see id. at 573).
          This Court did not have occasion to address this
judicially-created exception for the next 136 years.   However,
two years ago, in People v McCray (23 NY3d 621 [2014]), we
reaffirmed both the general rule and the exception established in

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Quinn, holding that:
          "Generally, if a building contains a
          dwelling, a burglary committed in any part of
          that building is the burglary of a dwelling;
          but an exception exists where the building is
          large and the crime is committed in a place
          so remote and inaccessible from the living
          quarters that the special dangers inherent in
          the burglary of a dwelling do not exist"
          (McCray, 23 NY3d at 624).
Despite the passage of many years since our decision in Quinn, we
reiterated in McCray the enduring purpose of treating burglary of
a dwelling as a more serious crime, specifically that "an
intrusion into a home . . . is both more frightening and more
likely to end in violence" (id. at 627; see People v Barney, 99
NY2d 367, 370 [2003]).   We further noted that "these dangers are
created in significant degree when the crime is committed 'in
close contiguity' with a 'place of repose' even though the place
of the burglary and the sleeping quarters are not instantly
accessible to each other" (McCray, 23 NY3d at 627).   As an
example, we described a store owner in his bedroom becoming aware
of a burglar in the shop downstairs as a situation raising the
special dangers inherent in the burglary of a dwelling that
justify treating the crime as more serious than the burglary of a
building in which no one lives (see id.).
          In McCray, we also accepted the continued viability of
the exception created in Quinn, which placed a "common sense
limitation on a literal reading of a statute" for buildings where
"applying the four walls and a roof rule would stretch the


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statute beyond its purpose" (id. at 628).    To illustrate the
exception, we asked the reader to "imagine a skyscraper"
containing mainly stores and offices, "with a few apartments
remote and inaccessible from the commercial space" (id. at 627
[emphasis added]).   We recognized that, in such a situation,
breaking into one of the commercial spaces may create virtually
no risk that the apartment residents would even be conscious of
the burglar's presence, such that the purposes of the statute
would not be served and its application would be unfair (see
id.).
          The actual building at issue in McCray was a large,
modern Manhattan building containing numerous businesses,
including Madame Tussaud's Wax Museum and a Hilton Hotel.
Because the hotel constituted a dwelling, we concluded that the
defendant could be guilty of two counts of burglarizing a
dwelling where he broke into a locker room for hotel employees,
and into the museum.   We reasoned that, even though these areas
were several floors away from guest rooms where people slept, an
internal stairwell provided access between the floors on which
the guest rooms, the locker room, and the museum were located
(see id. at 630).    Significantly, to reach the locker room, the
burglar had entered the stairwell by passing through the 16th
floor, which was adjacent to the 17th floor where guest rooms
were located.   We had "little hesitation in concluding that the
risks inherent in burglary of a dwelling -- the 'night terror'


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and the danger of violence that we spoke of in Quinn -- are
present when a burglar comes this near to rooms in which people
are sleeping" (id.).   Although it was a closer call on the
burglary of the museum, which was much farther from the guest
rooms, we found that it constituted burglary of a dwelling
because the burglar likely gained access through the
aforementioned stairwell (see id.).    Though the floors of the
museum that the defendant entered were not physically close to
the hotel's guest rooms, we noted that proximity and ease of
access were "at least equally important" factors (id.).     Thus,
this Court clearly stated that, for the exception to apply, the
burglarized portion of the building must be both remote and
inaccessible to the sleeping quarters (see id. at 624, 630).
          Despite use of the word "large" in both Quinn and
McCray to describe buildings subject to the exception, I agree
with the majority that a building's size, per se, is not
dispositive but, instead, constitutes a factor to consider when
determining whether the residential portion of the building is so
remote and inaccessible as to eliminate the dangers inherent in
burglaries of dwellings.   However, I cannot agree with the
majority's conclusion that applying the general rule is
unwarranted here, such that the exception applies and the
basement cannot be considered a dwelling under Quinn and McCray.
          In my view, the majority errs in overlooking the fact
that what our cases call "the general rule" is based on a literal


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reading of the statute itself.    As a result, the majority too
broadly applies an exception that this Court created; such an
exception should be narrowly applied because it circumvents the
plain language used by the legislature (see e.g. Matter of Gomez
v Stout, 13 NY3d 182, 187 [2009]; Solow Mgt. Corp. v Tanger, 10
NY3d 326, 330-331 [2008]).   Although the exception to the
statutory language was judicially created many years ago, this
Court has only addressed it twice (including the case in which it
was created).   Both times, we found that it was inapplicable.
Until today, neither this Court nor any other appellate court in
this state has ever found that the exception to the statute
applied to the facts of any particular case presented to it.
           As noted, McCray made clear that the exception requires
the burglarized portion of the building to be both "remote and
inaccessible" to the residential portion (McCray, 23 NY3d at 624
[emphasis added]).   Indeed, we stated that proximity and ease of
access were each important factors (see id. at 630).    In McCray,
we did not apply the exception because, although the sleeping
quarters were fairly remote from the museum, they were accessible
by a common stairwell (see id.).    We did not apply the exception
in Quinn because the living quarters were inaccessible due to the
lack of an internal connection, but they were one floor above the
burglarized shop, rendering them not remote (see Quinn, 71 NY at
565).   Hence, in each case in which we have considered the
exception, we declined to apply it where only one of the two


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criteria was present.
          Here, it is undisputed that the apartments are not
directly accessible from the basement.   The point of contention
is the remoteness factor.   The criteria of remoteness addresses
distance or proximity (see Black's Law Dictionary 1487 [10th ed
2014], remote ["[f]ar removed or separated in time, space, or
relation"]).   The majority concludes that the basement was remote
because the residents do not use it and have no "relationship" to
that area (majority op at 6).   That conclusion conflates
remoteness with inaccessibility and fails to separately consider
the remoteness or proximity of the two portions of the building,
as required by our precedent.   It also relies on the use to which
the nonresidential area is put, which is not a factor in itself
and is distinct from the question of remoteness.
          Though lacking accessibility, the basement is not
remote from the apartments.    The basement is a mere two stories
below the nearest apartment.    In each of our prior cases, we
found that a distance of one story was not remote (see McCray, 23
NY3d at 630; Quinn, 71 NY at 565-566, 573).    We have never held
that direct contiguity is required to preclude remoteness, and I
cannot conclude that one additional story tips the balance.
Moreover, the entrance doors to the basement are on the street
level, just one story below the nearest apartment.   A tenant in a
second-floor apartment could easily experience "night terror" if
he or she became aware that someone was breaking into or


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burglarizing the basement just a short distance below.   That
situation is similar to our example in McCray of a hotel guest
hearing a burglar in a coffee shop across the hall (see McCray,
23 NY3d at 627).   Likewise, if the occupant of a second-floor
apartment was the owner of the deli here -- similar to the
example in McCray of a shop owner/tenant -- that person might be
likely to confront the burglar to protect his or her property,
creating the possibility of violence and danger to human life
which the statute was designed to deter (see id. at 627; see also
Barney, 99 NY2d at 370; Quinn, 71 NY at 567, 572).
          The majority is not only applying the exception for the
first time, but it is doing so in a factual situation that --
despite the majority's claim that its holding is limited to the
"narrow circumstances of this case" (majority op at 6) -- invites
the broad application of the exception to numerous ordinary
buildings, that is, buildings with a commercial space on the
ground floor, storage in a basement beneath the business, and
residential units in the upper stories.   The building here
consists of eight stories (including the basement), of which six
contain apartments.   That means that approximately 75% of the
building is residential.   This is a far cry from the example we
imagined in McCray, which consisted of a mainly commercial
skyscraper containing a few apartments a great distance from the
building's stores and offices (see McCray, 23 NY3d at 627).
          Application of the general rule here is consistent with


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the purpose of the statute, and the majority's holding
constitutes an unreasonable expansion of the exception to that
rule.   Rather than limiting the exception to cases in which
"applying the four walls and a roof rule would stretch the
statute beyond its purpose" (id. at 628), the majority's
application of the judicially-created exception here has
stretched the exception beyond its limits, causing it to swallow
the general rule as set forth by the legislature in the statute.
Because the basement in this primarily-residential building was
not so remote from the living quarters as to eliminate the
special dangers inherent in the burglary of a dwelling, I would
affirm defendant's conviction of burglary in the second degree.
*   *   *   *   *   *   *   *     *      *   *   *   *   *   *    *   *
Order modified by vacating the conviction on the count of
burglary in the second degree, dismissing that count in the
indictment, and remitting to Supreme Court, New York County, for
resentencing, and, as so modified, affirmed, in a memorandum.
Chief Judge DiFiore and Judges Pigott, Rivera, Abdus-Salaam,
Fahey and Garcia concur. Judge Stein dissents and votes to
affirm, in an opinion.

Decided October 25, 2016




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