Modern burglary statutes look nothing like their common law ancestors. At common law, burglary required proof of a breaking and entering, of a dwelling house, in the nighttime, with the intent to commit a felony once inside. New York's burglary statute is typical in that it requires proof of only entry (but not breaking), it is also committed when a defendant enters with permission but then remains unlawfully, it applies to any building (not just dwellings), and the intent is to commit any crime (not just a felony). The result --- an unjust one, in my opinion --- is that most common shopliftings are now punishable as Burglary 3º.
People v. Zokari (1st Dept. 12/17/2009), decided today, is a fairly typical case. The defendant entered a Duane Reade store in Manhattan and stole 103 packets of gum. The court rejected the defense argument that he lacked the intent to steal before he entered the store, a conclusion with which I agree. The defendant had been barred from Duane Reade stores but nevertheless entered the store in question with a large garbage bag. There was no reasonable view of the evidence that the defendant entered the store with legitimate shopping in mind.
Putting aside the only legal defense to the charge (lack of intent), was this really a case worthy of prosecution as a felony? Is the defendant really what the Legislature had in mind as a "burglar"? Is shoplifting of gum really worth a sentence of 2.25-4.5 years, even for a second felony offender?
Zokari demonstrates that, in the shoplifting context, larceny and burglary have merged into one offense. Rare is the shoplifter who does not enter the store without the intent to steal. The only thing standing between an information charging Petit Larceny and an indictment charging Grand Larceny is prosecutorial discretion. Now, perhaps Mr. Zokari was worthy of prosecution as a felon. We don't know much about his background, other than that he was banned from Duane Reade in the past and was a second felony offender. Perhaps he had a long rap sheet of thefts and the only way to send him a message, and protect the community from further thefts, was to incapacitate him for several years in a state prison. Maybe the People had good reason to prosecute this man as a felon. If so, the better move would be to create a recidivist theft statute (see, for example, Virginia's Grand Larceny statute which makes it a felony to steal after having been convicted three times in the past of Petit Larceny). This would be preferable to stretching Burglary beyond its intended and logical boundaries. (LC)
You gloss over the key fact that renders such thefts burglaries, namely, that the defendant had previously been banned from the otherwise public building. It is this prior trespass notice, personally communicated to the defendant by one with authority, that satisfies the enter and remain unlawfully element of burglary under Penal Law section 140.00(5)["A person who, regardless of his intent, enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless he defies a lawful order not to enter or remain, personnally communicated to him by the owner of such premises or other authorized person"].
Arguably the current burglary statute is more narrowly tailored than a recidivist larceny statute might be in that it only affects those who repeatedly steal from the same victim-store and not those who steal from ever changing victims.
Posted by: Nicholas P | January 08, 2010 at 12:25 PM