One of the elements of Burglary is the unlawfulness of the entry. In People v. Klem (2d Dept. 1/25/2011), the Defendant was accused of entering an abandoned building that had been foreclosed. Although there was a judgment of foreclosure and an order of sale, the complainant still had a property interest in the premises until the property was actually sold. Therefore, there was legally sufficient evidence on this element when the complainant testified that she did not consent to the Defendant's entry.
Nevertheless, the conviction was reversed.
As relevant to that charge, the defendant sought to call a witness who allegedly would have testified that, on the day of the incident, a hot water heater was taken from her property, and that her property abutted property owned by the employer of one of the codefendants. This testimony was relevant to the theory of defense, which was that the hot water heater that was seen in the defendants' possession by the People's witnesses had not been taken from the building on the complainant's property, and also would have served to impeach the credibility of the People's principal witnesses on the material issues of whether the defendants entered the complainant's building, and whether they did so with the intent of committing a crime therein.