Judgment, Supreme Court, New York County (Edward J. McLaughlin, J.), rendered December 6, 2007, convicting defendant, after a jury trial, of burglary in the second degree, endangering the welfare of a child and four counts of sexual abuse in the third degree, and sentencing him to an aggregate term of four years, affirmed.
The deliberating jury sent a note in relation to the second-
Defense counsel objected, “No. No. No. No,” and requested that the court reread its original instruction on that subject: “I’m asking for the readback of just the burglary with just the intent because in order to commit a crime, in a burglary situation, I believe that he has to know the age of the person when he goes in. He doesn’t have to know the age of the person to commit the underlying crimes of the sex[ual] abuse. But in order to have an intent to commit a crime inside, burglary in the second degree [he does]. And you are guaranteeing a conviction.”
The court responded by saying “It’s not. And once again, if there is a conviction—as you now predict—this is the first point on appeal, I gather.”
Because the trial court ruled on defense counsel’s objection, the court demonstrated “that [it] specifically confronted and resolved this issue. Under these circumstances, . . . preservation was adequate” (People v Feingold,
However, the court declined to reread its instruction and instead delivered a more specific instruction. Counsel “did not specify why the charge as given was inadequate. Thus, while there was preservation as to the court’s rеfusal to charge in accordance with defendant’s request, there was no preservation with respect to error in the [intent] charge as given” (People v Hoke,
As an alternative holding, we also reject defendant’s present claim on the merits. Defendant argues that his commission of strict liability offense of third-degree sexual abuse was not sufficient to satisfy the specific element of burglary that he “intended” to commit a crime when he entered the building. However, as the trial court correctly explained in its supplemental charge:
“How does the age of victim impact on intent? If the jury determines that a person intentionally went into a building for the purposes of having some sexual contact with аn underaged person, even if the accused did not know the age of the under-aged person, it would not matter.
“The intent—the intent that the law would focus on under those circumstances are the intent to have sexual contact.
“And the law says that a person is responsible for the age of a person with whom they have sexual interaction of any sort, notwithstanding the fact that the actor—supposed actor did not know the actual age, evеn if the person who was the supposed victim informed the person of a different age than what the person actually was.”
The crimes of which the jury convicted defendant were endangering the welfare of a child and four counts of sexual abuse in the third degree. The convictions are all strict liability crimes, in which, for the sexual abuse, the victim’s lack of consent was based on the victim’s incapacity because of age (Penal Law § 130.55 [“A persоn is guilty of sexual abuse in the third degree when he or she subjects another person to sexual contact without the latter’s consent”]; Penal Law § 130.05 [3] [a] [“A person is deemed incapable of consent when he or she is . . . less than seventeen years old”]). And Penal Law § 260.10 (1) states: “A person is guilty of endangering the welfare of a child when . . . [h]e knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old.”
At the trial, the People established that the victim was 14 years old and defendant was 32 years old. Because these misdemeanors do not require a specific intent, can their violation satisfy the intent required for a second-degree burglary conviction?
Matter of Gormley v New York State Ethics Commn. (
Here, the trial court correctly charged the jury that all the People had to prove was that defendant entered the building intending to have sexual contact with the victim. The People did not have to prove that defendant intended to commit a crime or that he knew the victim’s age or that she was under 17, as that was irrelevant to the intention necessary for the jury to find defendant committed burglary in the second degree.
This analysis is similar to the reasoning utilized in convictions for attempt. A defendant may intend to commit a partiсular act but does not complete the act because of legal impossibility. Even though the crime itself may not require intent because it is a strict liability crime, the defendant may be convicted of the attempt. For instance, in a conviction for attempted rape in the second degree, the court reasoned that defendant could be convicted for attempting to have sex with a police officer who posed as a 13-year-old girl over the Internet. The “core conduct” was “[e]ngaging in sexual intercourse with a person who does not give, or is incapable of giving, consent”; the victim’s age was an additional circumstance that made the conduct felonious (People v Mormile,
McGuire, J., concurs in a separate memorandum as follows: Defendant’s conviction of second-degree burglary (Penal Law § 140.25 [2]) was based on proof that after approaching a 14-year-old girl on the street, he knowingly and unlawfully entered
During deliberations, the jury sent out a note seeking “clarification of intent” with regard to the burglary charge, asking “[h]ow does the age of the victim impact on intent.” In discussing the note with counsel, the court stated that “[t]he answer to their intent question is if he intended to go into the building with a person and intended to have physical contact with that person, the age does not matter. In essence, he’s stuck with the age.” Defense counsel disagreed as follows:
“[defense counsel]: No. No. No. No. I’m asking for the readback of just the burglary with just the intent because in order to commit a crime, in a burglary situation, I believe that he has to know the age of the person when he goes in. He doesn’t have to know the age of the person to commit the underlying crimes of the sex[ual] abuse.”
After brief additional discussion, the jury was brought into the courtroom and instruсted as follows:
“the court: If the jury determines that a person intentionally went into a building for the purposes of having some sexual contact with an underaged person, even if the accused did not know the age of the underaged person, it would not matter.
“The intent—the intent that the law would focus on under those circumstances are [sic] the intent to have sexual contact.”
Thus, at trial defense counsel contended (contention 1) that “to commit a crime, in a burglary situation, . . . [defendant] has to know the age of the person when he goes in.” On appeal, although defendant formulates his claim in various ways, he apparently regards each as equivalent to the others and to contention 1. He contends (contention 2) that the trial court should have instructed the jury that “to satisfy the ‘intent to commit a crime’ element of burglary, the jury must find . . . that at the time [he] . . . entered the building, he . . . had the conscious objective and purpos.e of causing a partiсular unlawful result, knowing that result to be unlawful.” A variant of this contention (contention 2A) is that the “intent to commit a crime” ele
Without differentiating between these contentions, the majority states at the outset of its analysis that “preservation was adequate” under People v Feingold (
Thus, the only claim that defendant is entitled to raise on this appeal as a question of law is that the court should have simply repeated its main charge on the intent element of the burglary charge. As defendant does not make thаt claim, we need not decide it or any other issue. I agree with the majority, however, that any claim that the court erred by not repeating that portion of the main charge is meritless (see generally People v Malloy,
I also agree with the majority’s alternative holding that defendant’s appellate contentions are without merit in any event. But I also think they are unpreserved for another reason. Each of defendant’s appellate formulations of his position would require the People to prove defendant’s subjective knowledge of a legal rule, a position to which the trial court would not have been alerted by contention 1. Thus, for example, contention 2A would require the People to prove that defendant knew that the conduct he intended to commit was defined by the law to be a crime (and, to boot, that his conscious objective was to break the law); contentions 3 and 3A would require proof that defendant knew the rule of law that a person less than 17 years old cannot consent to acts of sexual contact (and that he knew the victim was less than 17 years old). By contrast, contention 1—that the People were required to prove that defendant knew the victim’s age—would require proof of defendant’s knowledge not of a rule of law but of a pure fact. Obviously, the law could require proof that a defendant knew the age of the alleged victim without also requiring proof that, the defendant knew the legal significance of that fact, i.e., either the specific rule that a person less than 17 years old cannot consent to sexual contact or the more general rule that sexual contact with a person less than 17 years old is criminal. Whether a law requiring рroof only of the age of the alleged victim would be a silly law is beside the point. The point is that the specific contentions defendant seeks to raise on appeal are not preserved because defendant pressed a distinct contention at trial (cf. People v Gray,
As for the merits, defendant’s appellate contentions are, obvi
In sum, the burglary statute does not require additional proof that the defendant knew that causing the intended result or committing the intended conduct is illegal (i.e., violates a rule of law), and we cannot properly read an additional element into the statute (Matter of Chemical Specialties Mfrs. Assn, v Jorling,
In addition, acceptance of defendant’s position would entail something that is at least controversial even if some might not view it as an oddity: the more knowledgeable about the law a criminal is, the more likely it is that he will be convicted of burglary if he commits criminal trespass in a building and enters with the intent to commit conduct that constitutes a strict liability crime. Suffice it to say, it is far from obvious that the Legislature would have regarded as significantly less blameworthy a criminal who commits such a trespass but does not know
Another problem with defendant’s position is that it is not clear how much knowledge the accused must have. Suppose the defendant touches the “sexual or other intimate parts” (Penal Law § 130.00 [3]) of the victim through her clothing or causes her to touch his “sexual or other intimate parts.” Must the defendant know that the law defines sexual contact to “include[ ] the touching of the actor by the victim, as well as the touching of the victim by the actor, whether directly or through clothing” (id.)? In this case, to convict defendant of burglary on the theory that he intended to commit acts constituting the crime of endangering the welfare of a child, must defendant have known that the conduct he intended to commit was “likely to be injurious to the physical, mental or moral welfare” (Penal Law § 260.10 [1]) of the child? Defendant provides no answer tо these questions, and it is not clear what could justify requiring the People to prove the defendant knew one legal rule (e.g., a person less than 17 years old cannot consent to acts of sexual contact) but not another legal rule (e.g., sexual contact includes touching “directly or through clothing”) defining a strict liability crime. This much is clear, however, nothing in the language of the burglary statute provides such a justification. A related problem, which I will mention but not discuss, is that it also is not clear how the text of the burglary statute could support confining defendant’s position to burglary charges predicated on intent to commit strict liability crimes.
Finally, although the parties do not discuss Penal Law § 130.10 (1), this statute provides another reason to reject defendant’s position, or at least contention 1. It provides that “[i]n any prosecution under this article in which the victim’s