Judgmеnt, Supreme Court, New York County (Edward McLaughlin, J.), rendered April 8, 2002, convicting defendant, after a jury trial, of burglary in the second degree and criminal contempt in the first and second degrees, and sentencing him to concurrent terms of 5 years, l
Based on an incident that occurred on July 24, 2001, defendant was charged with first-degree criminal contempt, and, based on an incident that occurred on August 20, 2001, he was charged with second-degree burglary and second-degree criminal contempt. At trial, the Feople presented evidence that, in the July 24 incident, defendant entered the apartment of the complainant, his former girlfriend, in violation of an order of protection, and used physical force against the complainant, causing her head to bleed. With regard to the August 20 incident, the Feople presented evidence that, on that date, defendant again entered the complainant’s apartment in violation of an order of protection, and, while inside the dwelling, threw some of the complainant’s belongings out the window. The jury
With regard to the first-degree criminal contempt conviction based on the July 24 incident, defendant argues that he is entitled to a new trial because the court failed to submit justification as a defense to those aspects of the first-degree criminal contempt charge involving physical contact with the complainant (Penal Law § 215.51 [b] [v]). This argument is without merit. Defendant testified that he used physical force against the complainant on that occasion because she pushed him. In view of all the evidence, defendant’s testimony was insufficient to raise a genuine issue as to whether he reasonably believed that his use of force against the complainant was necessary to defend himself from what he reasonably believed to be the use or imminent use of unlawful physical force (see Penal Law § 35.15 [1]). Accordingly, the court properly declined to charge the jury on the defense of justification.
With regard to the August 20 incident, it appears that defendant challenges only his conviction for second-degree burglary. Insofar as defendant challenges the sufficiency or weight of the evidence on which this conviction is based, his arguments are unavailing. As here relevant, a person commits second-degree burglary by knowingly entering a dwelling unlawfully, with the intent to commit a crime therein (see Penal Law § 140.25 [2]; People v Polanco,
Although the dissent does not suggest that the burglary count of the indictment should be dismissed, it states, in closing, that one ground for reversal of the burglary conviction is “legal insufficiency.” We do not understand this position. The complainant competently testified that, at about 3:00 a.m. on August 20, 2001, she returned to her apartment and found defendant sleeping in her bed, in violation of an order of protection she had obtained against him. When the complainant woke defendant up and asked him to leave, he responded with verbal and physical abuse, essentially chasing her out of her own home. After defendant (who had followed the complainant out of the apartment) was arrested, the complainant, upon returning to her building, noticed that the fire escape ladder leading to her aрartment was pulled down, and that “[her] pocketbook and [her] papers” were strewn on the ground below her window.
Defendant also argues that the trial court erred in instructing the jury that, for purposes of the “enters . . . unlawfully” ele
Although the dissent also rejects defendant’s challenge to the trial court’s instruction on the element of unlawful entry, it appears to reach this conclusion based on lack of sufficient evidence to establish the complainant’s consent to defendant’s entry into the apartment at the relevant time. We disagree with the apparent suggestion that entry into premises in violation of a court order does not, by itself, satisfy the unlawful entry element of the crime of burglary, a position for which the dissent cites no supporting authority. As we understand the law, once a court has ordered an individual to stay away from specified premises, the individual must comply with the order while it remains in effect, regardless of anything said or done by the occupant of the premises. Stated otherwise, the occupant of the premises has no power to grant a license or privilege to enter the premises, within the meaning of Penal Law § 140.00 (5), to a person who is required by court order to refrain from entering those premises. The dissent’s suggestion to the contrary is troubling, especially given that an order of protection is typically issued for the benefit of a person endangered by pressure and undue influence exerted by the person to whom the order is directed.
The dissent finds merit in another objection defendant raises to the court’s main charge on the burglary count, notwithstanding that the charge clearly tracked the relevant language of Penal Law § 140.25, and, as the dissent acknowledges, conformed to “the standard charge for burglary in the second degree.” The main charge was still erroneous, defendant and the dissent argue, on the ground that (in the dissent’s words) it “never apprised the jurors, as requested by defendant, that entry into a dwelling in violation of an order of protection does not constitute the requisite intent to commit a crime therein” under the burglary statute. We disagree.
Neither defendant nor the dissent identifies any particular language in the main charge that was erroneous. Their complaint is not with any language that the court actually included in the main charge (which followed the pattern jury instructions), but with the court’s denial of defendant’s request
In our view, the main charge on the burglary count in this case, by tracking the statutory language and the pattern jury instructions, sufficiently informed the jury that unlawful entry into the premises, and intent to commit a crime within the premises, are separate elements of the offense (but see People v Tillman,
Although defendant makes no such argument, the dissent appears to suggest that the main charge was erroneous on the additional ground that it failed to convey to the jury that a burglary conviction required a finding that defendant intended to commit a crime within the complainant’s apartment at the time he unlawfully entered the dwelling (see People v Gaines, 74
Defendant and thе dissent further object to certain remarks the court made in colloquy with counsel, outside the jury’s presence, before the jury was instructed on the law. In these remarks, the court expressed the view that an entry in violation of an order of protection could satisfy both the elements of unlawful entry and of intent to commit a crime within the unlawfully entered premises. The main charge that was subsequently read to the jury, however, did not include any language reflecting the substance of the colloquial remarks in question. Because these remarks did not find their way into the instructions the court actually read to the jury, such remarks are irrelevant to the determination of this appeal. What is relevant is the charge the court actually delivered, and, to reiterate, the court delivered a correct main charge, even if it did so inadvertently.
Defendant also challenges a one-sentence supplemental instruction on the burglary count that was given in response to a note from the jury. The dissent agrees with defendant, and concludes that, even if there was no error in the main charge, the supplemental instruction, by itself, requires reversal of the burglary conviction. Again, we disagree. The fact is that defendant not only failed to preserve his objection to the supplemental instruction, but, as the record demonstrates, he waived that objection by specifically formulating and requesting the challenged instruction.
During deliberations, the jury handed up a note reading as follows: “With regard to element three of burglary [intent to commit a crime within the building] is intent in the contempt
“[defense counsel]: I don’t have to[o] much problem with what [the prosecutor] just said. I would say in the last part, you should say, if it is your general question as to whether contempt can be many—the crime [that] constitutes contempt can be the basis for a burglary charge, the answer is yes. If you would premise it, if that is their general question.
“the court: All right. I will do it that way.” Immediately thereafter, the jury was brought back into the courtroom, and the court gave, in substance, the supplemental instruction that defense counsel had formulated and requested (“If your general question has to do with whether conduct that constitutes contempt can be the basis of a burglary the answer is, yes”). This is the supplemental instruction of which defendant now complains, and which the dissent finds to require a new trial.
Since the challenged supplemental instruction was specifically requested by defense counsel, not only did defendant fa'il to preserve for our review any objection to that instruction (see CPL 470.05 [2]), he affirmatively waived any such objection (see People v White,
Notwithstanding that defense counsel formulated and requested the supplemental instruction in question, the dissent finds the issue concerning this instruction preserved for review because, during the precharge colloquy, the court had earlier disagreed with defense counsel’s argument that the same act could not satisfy both the unlawful-entry and intent-to-commit-a-crime elements of burglary.- This overlooks the fact that, as previously discussed, any alleged error in the views the court
The dissent’s view that defense counsel was not required to reiterate defendant’s pоsition in the colloquy concerning the note from the jury assumes that, during the charge conference, the court had already issued a “ruling” adverse to defendant on the issue presented by the note, thereby obviating the necessity for further protest. The fact remains, however, that the arguably erroneous legal view expressed by the court during the charge conference had not been incorporated into the main charge the court delivered to the jury. Thus, the court’s precharge statements to counsel were not rulings; rather, such statements were the equivalent, at trial, of dicta in a written judicial opinion. Stated otherwise, the issue raised by the jury’s note was one on which the court had not previously ruled. Even if the court’s prior statements could be deemed to excuse defense counsel’s failure to protest the court’s intended response to the note, defense counsel did far more than acquiesce in the court’s response. Again, defense counsel actually formulated a response to the note, and requested that the court use that response, which the court did. Defendant should not be heard to complain that the court delivered a supplemental instruction that his own counsel proposed on an issue that was not the subject of any prior ruling (as opposed to mere discussion) by the court.
Finally, we perceive no basis for reducing the sentence. Concur—Nardelli, J.E, Sullivan and Friedman, JJ.
Tom and Lerner, JJ., dissent in a memorandum by Tom, J., as follows: At issue on this appeal is whether defendant’s violation
The indictment against defendant arose out of two separate incidents, which occurred on July 24 and August 20, 2001. On each occasion, defendant entered the apartment of his sometime girlfriend in violation of an order of protection that, among other things, directed him to stay away from her home and to refrain from assaulting, harassing, menacing or intimidating her. By way of background, defendant and the complainant had previously resided together in her apartment, to which defendant had been given keys and for which he was supposed to contribute rent. Although she had obtained a previous order of protection in April 2001 that did not expire until 2004, the complainant subsequently permitted defendant to return to her home.
At about 8:40 p.m. on the evening of July 24, 2001, police officers responded to the report of an assault in progress at the complainant’s apartment. They encountered defendant standing near the complainant’s apartment door as they approached. They found the complainant in the bathroom, “extremely upset” and bleeding from a head wound. Defendant exhibited no sign of injury and was taken into custody. A set of apartment keys was recovered from his pocket and returned to the complainant.
According to the complainant, an argument had erupted when she told defendant to “get his stuff off of my table.” According to defendant, the complainant had begun pushing him, whereupon the two “tussled,” with the result that she sustained a head injury that began to bleed. Although defendant later denied it, the complainant testified that he had struck her in the head with a plate, at which point she called the police and requested аn ambulance.
The complainant was reluctant to pursue charges against defendant. She told the Assistant District Attorney that her injury
On August 20, 2001, after staying with a girlfriend for two days, the complainant returned to her home at about 3:00 a.m., only to find defendant in the apartment. She told him to leave “quite a few times” and finally went down to the street to call the police from a pay phone. Defendant followed her, berating her and admonishing her to go back upstairs. When the police arrived, she showed them the order of protection, and defendant was аgain placed under arrest.
The responding police officers noticed that the fire escape ladder leading to the complainant’s apartment had been pulled down to the ground. They also observed a knapsack, some papers and a telephone lying on the ground directly under the complainant’s apartment window.
Defendant denied that he used the fire escape to enter the premises, claiming instead that he had gained entry by jimmying the lock on the apartment door. In either event, it is undisputed that defendant entered the apartment without the complainant’s consent. What cannot be ascertained is whether the jurors believed that defendant entered the premises with the intention of ejecting any of the complаinant’s belongings from the apartment since the court’s instructions to the jury did not convey the necessity to reach and decide this question.
The jury found defendant guilty of burglary in the second
Defendant contends that the failure to deliver a justification charge with respect to first-degree criminal contempt constitutes reversible error. A person commits criminal contempt in the first degree when he knowingly violates a duly served order of protection with the “intent to harass, annoy, threaten or alarm” the person for whose protection the order was issued, and he “strikes, shoves, kicks” or otherwise subjects or threatens to subject the protected person to physical contact (Penal Law § 215.51 [b] [v]). Under Penal Law § 35.15 (1), a person may be justified in using рhysical force on another person if he “reasonably believes such to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force.”
A defendant is entitled to a justification charge whenever there is evidence to support it (People v McManus,
To prove defendant guilty of burglary in the second degree, the People were required to establish (1) that he knowingly entered or remained in the complainant’s dwelling “unlawfully” and (2) that he did so with intent to commit a crime “therein” (Penal Law § 140.25 [2]). Defendant contended that he had the complainant’s permission to enter her apartment. Noting that unlawful entry is dеfined by the Penal Law as entry “in or upon premises when [the defendant] is not licensed or privileged to do so” (Penal Law § 140.00 [5]), defendant contended that the court should have instructed the jury that the prosecution was required to prove that he was not “licensed or privileged” to enter the complainant’s apartment and, further, that her prior consent to accept defendant back into the apartment, despite the prohibition in the protective orders, was tantamount to the requisite license or privilege. The trial court rejected defendant’s requested charge, holding that the victim’s consent could not override a protective order or make lawful that which the protective order forbade. Therefore, the court instructed the jury: “ ‘Unlawfully’ means that a person
In the absence of a stay, the parties are generally obligated to obey a court order until it is vacated or reversed on appeal (see Russell v Tejada, 4 AD3d 661 [2004]). In any event, the record contains sufficient evidence to support the conclusion that whatever consent the complainant may have given to defendant to enter into and remain in her apartment had been withdrawn prior to the events of August 20. Notable in this regard is the retaking of defendant’s keys (see Matter of Eight Cooper Equities v Abrams,
The second element of burglary—entry with the intent to commit a crime while within the dwelling—is more problematic. Nothing in the record conclusively refutes defendant’s contention that he went into the apartment intending only to get some rest. Upon the complainant’s return, however, an argument ensued and defendant is then alleged to have committed additional acts that were also in violation of the order of protection. The defense specifically requested the court to charge that, as to burglary, the intent-to-commit-a-crime-therein element cannot be satisfied by merely showing that defendant intended to violate the orders of protection by entering into the apartment; rather, it must be shown that, at the time of the illegal entry, he intended to commit some additional crime. The court, however, deсlined the request and expressed its view that defendant’s mere presence in the apartment in violation of the orders of protection constituted a burglary.
This exchange demonstrates that the trial court misapprehended both this Court’s decision in People v Polanco (
The defense submitted a written request for a clarifying instruction:
“That the intent to commit a crime therein element of the burglary statute cannot be satisfied merely by showing the defendant’s intent to violate the Court order by going to or entering into the complainant’s apartment. Rather, it must be shown he intended to commit some additional crime.
“The jury may be instructed, however, that if proved such additional crime could include further or more serious violations of the Order of Protection beyond the mere entry into the apartment, such as harassing the complainant, striking the complainant, etcetera, citing People versus Polanco, People versus Pau L[u]ong.”
The court responded, “I disagree. I believe the Third Department already said they disagree.” It went on to statе: “I think this is a rare situation where the knowledge and the intent coalesce. He knows that’s a violation of the Order of Protection, he knows that’s a contempt and he has for some reason a desire to show the complaining witness [who] personally acquired the Order of Protection, that I don’t fear the Court, I’m bold enough to want to prove to you that I can violate this, I’m here. I don’t think he has to do anything other than that and that’s the way I understand the Cremins [sic] case to mean and that’s the way I understand Polanco, notwithstanding the superfluous things they said.”
As to the preservation of the issue for appellate review, the trial court was clearly on notice of defense counsel’s disagree
Prior to deliberations, the court delivered the standard charge for burglary in the second degree, instructing the jurors, “A person commits that crime when he knowingly enters unlawfully in [szc] a building with intent to commit a crime therein and when the building is a dwelling.” The court never apprised the jurors, as requested by defendant, that entry into a dwelling in violation of an order of protection does not constitute the requisite intent to commit a crime therein.
During deliberations, the jury sent a note to the court requesting guidance on the relevance of defendant’s commission of contempt with respect to the elements of unlawful entry and intent to commit a crime therein. The note read: “With regard to element three of burglary,[
The prosecutor’s recollection accurately describes thе court’s ruling on this point. Following further colloquy concerning the precise question that was being posed in the jurors’ note and the evident confusion concerning the dates of the respective acts of criminal contempt, the prosecutor proposed that the jurors be told that “contempt can be the basis for an attempt to commit a crime therein.” Defense counsel merely asked the court to preface the response with the words “if it is your general question.” Consistent with its opinion, expressed during the charge conference, that unlawful entry in violation of an order of protection constitutes a burglary, the court responded: “If your general question has to do with whether conduct that constitutes contempt can be the basis of a burglary the answer is, yes.”
When the court directed the jurors to resume their delibera
“Got to go back in there for at least a period of time so that I’m comfortable that you are comfortable that you think that you are in a position that you reached a verdict.
“If you are in fact in a position write a note with the time on it.” The jurors left the courtroom at 5:57 p.m. Two minutes later, at 5:59 p.m., the court received a note from the jurors, indicating that they had reached a verdict.
Intent to commit a crime can be inferred from the attendant circumstances (e.g. People v Barr,
Moreover, while entry into the complainant’s apartment in violation of the orders of protection, standing alone, constitutes evidence that defendant may have been guilty of criminal contempt, the burglary charge requires proof that, at the time defendant entered the apartment, he intended to commit a crime within the dwelling (Penal Law § 140.25 [2]). Defendant’s intent to enter the apartment, in violation of one asрect of the protective order, does not constitute proof of intent to commit a crime once he was inside the apartment. The prosecution is required to prove that defendant intended to commit a crime beyond simple criminal trespass at the time of the unlawful
It is clear from the transcript of the charge conference and the court’s supplemental instruction in response to the note from the jurors, that it considered defendant’s violation of the order of protection (by entering upon the premises occupied by the complainant as her dwelling), without more, to constitute the crime of burglary in the second degree. The discussion concerning the jurors’ note clearly reflects counsels’ understanding of the court’s prior ruling on this point, which, as the court noted on the record, presented an issue for appeal. Consistent with its earlier ruling, the court did not deliver the instruction—previously requested by the defense and clearly warranted by the jury’s question (see Gaines,
The People do not contend that the supplemental instruction requested by the defense was inaccurate in any way. Rather, the People argue, disingenuously, that because the court’s initial instruction tracked the statutory language, the jury “surely understood” that unlawful entry and intent to commit a crime were separate elements and “certainly comprehended that ‘therein’ meаnt that defendant intended to commit a crime inside the dwelling, as distinguishable from the separate element of ‘unlawful entry’ ” The short answer to this contention is that the keen analytical powers that the People ascribe to a panel of lay persons (see People v Kelly,
I take issue with the contention, expressed in the majority opinion, that defense counsel abandoned his objection to the court’s burglary charge because he “formulated and requested the supplemental instruction in question.” This view fails to appreciate either the procedure for raising a timely objection or the status of a ruling made in regard to that objection as law of the case and, in any event, is unsupported by the record.
To preserve an issue for review, a defendant is only required to register protest to an instruction at a “time when the court had an opportunity of effectively changing the same” (CPL 470.05 [2]). The defendant is not required to continually protest the court’s ruling (see People v Rosen,
Defense counsel anticipated that the jurors would equate entry into the complainant’s apartment in violation of the order оf protection with the intent to commit a crime therein and therefore requested a clarifying instruction. The court refused the application. When the confusion foreseen by counsel became manifest, the prosecutor reminded everyone of the court’s earlier ruling (that entry in violation of the order constitutes burglary). In view of the court’s stated position, it would have been a futile gesture to request a supplemental instruction both diametrically opposed to the court’s view and expressly rejected by it (see People v Bonilla,
The facts of this matter do not suggest that defendant’s conduct falls comfortably within the purview of burglary, which is punishable “as a serious felony . . . because of the heightened danger posed when an unlawful intrusion into a building is effected by someone bent on a criminal end” (Gaines,
Any conclusion by the jurors that defendant harbored an intent to deprive the complainant of her possessions at the time he entered her apartment, as the majority suggest, is tainted by the prosecutor’s examination of Officer Martiny, during which she consistently and incorrectly referred to the incident of July 24 while questioning the witness about the events of August 20, 2001, the incident from which defendant’s burglary conviction
The prosecutor’s assertion that the complainant arrivеd home to find her possessions thrown on the ground is simply not supported by the evidence. There is absolutely no testimony as to when the complainant’s possessions were alleged to have been thrown from her apartment. Officer Martiny testified only that a photograph he took of items lying under the window depicted a “knapsack” and “some paperwork.” The knapsack was described by the complainant as “[m]y pocketbook.” She testified that she inspected the fire escape and the area under the window after defendant was placed under arrest, not upon her return to the premises. On her cross-examination of defendant, the prosecutor suggested that he had also thrown a telephone from the apartment. The complainant, however, in response to more than one question, had previously denied that she had a telephone in the apartment, which is consistent with her testimony that she left the building to use a pay phone on the street to call the police.
Justice is not served by upholding a conviction predicated on an insufficient legal basis (see Cahill, 2 NY3d at 38). As the Court of Appeals stated in Gaines (
Whatever might be made of the court’s original instructions on the burglary offense, the jurors were presented with the legal proposition, clearly propounded by the prosecutor during summation, that defendant went to the complainant’s apartment with the intention of committing a crime, particularly, criminal contempt, and that “[j]ust by going there he’s committing the crime of Contempt.” Given the sequence of events, particularly the swiftness of the verdict following the court’s supplemental charge, it is highly speculative to suggest that the jurors made a deliberative determination, from the presence of the items found under the fire escape window, that defendant intended to commit a separate crime at the time he entered the apartment. Rather, the jurors were induced to conclude that, by
The issue at bar is whether the People sustained their burden of proof on all the elements of each offense for which defendant stands convicted. The operative question is not whether the trial court accurately read from the criminal jury instructions but whether the jury charge, as a whole, accurately conveyed the People’s burden of proof as to each element of burglary in the second degree (see Gaines,
Accordingly, I would modify the judgment to the extent of vacating the judgment of conviction on the burglary count and remanding the matter for a new trial on that charge.
Notes
. We do not understand the dissent’s position that “[n]othing in the record conclusively refutes defendant’s contention that he went into the apartment intending only to get some rest.” It seems to us that if the jury believed that defendant entered the apartment with the intention to throw the complainant’s belongings out the window, that would conclusively refute defendant’s contention that he went into the apartment “to get some rest.”
. Since the People were not required to prove the particular crime defendant intended to commit within the apartment, the dissent is incorrect in its assertion that the court’s instructions were required to “convey the necessity to reach and decide [the] question” of whether “defendant entered the premises with the intention of ejecting any of the complainant’s belongings from the apartment.”
. The dissent appears to be under the misаpprehension that defendant was arrested inside the apartment. It is clear from the testimony of both the complainant and the arresting officer that defendant was arrested on the street, in the complainant’s presence.
. The dissent places unwarranted emphasis on the prosecutor’s apparent inadvertent factual error in referring to July 24 in the course of questioning a police witness about the August 20 incident, in which the complainant returned home at 3:00 A.M., found defendant sleeping, in her bed, and subsequently found her belongings strewn outside. Defense counsel raised no objection to the line of questioning to which the dissent refers, and, in any event, the erroneous references to July 24 in the prosecutor’s questions do not detract from the sufficiency of the other evidence—in particular, the complainant’s testimony—to support defendant’s conviction for committing burglary on August 20, 2001. In addition, whether a telephone was among the items thrown out of the apartment is a less-thаn-compelling inconsistency between the complainant’s testimony and that of the arresting officer, and does not affect the sufficiency of the evidence to support the burglary conviction.
. Neither People v Cahill (
. Whether a jury subjectively understood what a properly formulated instruction was intended to convey is a question that arises only when the jury asks a question during its deliberations that manifests confusion on a point of law. When the court receives such a question from the jury (as occurred here), an error in the court’s response may (if not harmless) warrant reversal of the conviction. In this case, however, defendant failed to preserve for appellate review, and affirmatively waived, his objection to any error in the supplemental instruction the court delivered in response to the jury’s note. This point is more fully discussed below.
. To the extent the dissent suggests that the prosecutor, in her summation, erroneously stated what would constitute burglary in this case, such error would provide no grounds for reversal as a matter of law, as defense counsel did not object to the comment in question, nor is there any reason, on this record, to invoke our interest-of-justice powers to consider such issue.
. Although the prosecutor, in examining Police Officer Ronald Martiny, consistently addressed questions to the witness concerning the events of July 24, 2001, it is clear that the events that the officer was actually describing were those of August 20, 2001. The July 24th altercation took place before 9:00 P.M. Defendant was taken into custоdy well before midnight and was held for the next 10 days. Therefore, defendant could not have been present in the complainant’s apartment after 3:00 A.M. that same night, as the witness recounted. As the complainant testified, it was in the early morning hours of August 20th at about 3:00, that she returned to her apartment to find defendant in her bed.
. The court charged the elements of burglary as: (1) “the defendant entered the building at 154 West 129th Street and that... is a dwelling,” (2) “he entered knowing that his entry was unlawful” and (3) “he entered the building, the dwelling, intending to commit a crime therein.”
. Defendant was charged with criminal contempt in the second degree with respect to the events of August 20; the first-degree contempt charge relates to the events of July 24.
. The necessity to instruct the jury that a defendant must have harbored the intent to commit a separate crime within the dwelling at the time he entered it would appear to be mandated, at least where the defense requests it (see People v Blacknall,