1. Whether a house qualifies as a "dwelling" in order to sustain a conviction for second degree burglary under Penal Law §140.25(2), when its only occupant has recently passed away and the house is still habitable for overnight occupation.

2. Whether a defendant is entitled to instructions on a lesser included offense when there is no reasonable interpretation of the evidence that could substantiate a finding that only the lesser included offense was committed.

1. Yes. The recent death of the sole occupant does not alter the house's status as a dwelling for purposes of §140.25(2) when the house is suitable for overnight occupation and the nature of the home had not changed.

2. No. When a jury could not reasonably convict the defendant of only the lesser included offense, the defendant is not entitled to instructions on the lesser included offense.

Defendant entered the home of a man whom he knew had died three days earlier and gathered property from the home for removal. Police arrested Defendant before he left the house. At trial, Defendant moved to dismiss the charge of burglary in the second degree, arguing that there was insufficient evidence under N.Y. Penal Law §140.25(2) to find that the house was a "dwelling", because no one had occupied the house in three days and no one intended to occupy the house. Defendant also requested that the lesser included offense of third-degree burglary be submitted to the jury. The trial court denied both Defendant's request and his motion, and Defendant was convicted of burglary in the second degree and petit larceny. A divided Appellate Division affirmed. The Court of Appeals affirmed.

The Court employed the three-part test from People v. Sheirod to determine whether the home was a dwelling under N.Y. Penal Law §140.25(2). People v. Sheirod, 124 A.D.2d 14 (N.Y. App. Div. 1987). The three parts are: (1) "the nature of the structure," (2) "the intent of the owner to return," and (3) "whether, on the date of the burglary, a person could have occupied the structure overnight." Sheirod, 124 A.D.2d at 17. Defendant relied heavily on the second factor, arguing that the occupant had no intent to return to the home. The Court held that all three parts do not need to be satisfied, and found that the house was a furnished residence, was suitable for habitation, and was amenable to overnight occupation. The Court refused to hold that the recent death of an occupant automatically causes a home to lost its status as a dwelling. The Court therefore concluded that the evidence did not support a finding that the house was not a dwelling for statutory purposes, and that a jury could have concluded reasonably that the house was "usually occupied by a person lodging therein at night." N.Y. Penal Law §140.00(3).

The Court used the two part test from People v. Van Norstrand to determine that Defendant was not entitled to a jury instruction for burglary in the third degree. People v. Van Norstrand, 85 N.Y.2d 131, 135 (1995) The two parts of the test are: (1) "Defendant must prove that it is impossible to commit the greater crime without necessarily committing the lesser," and (2) "there must be a reasonable view of the evidence which would support a finding that the defendant committed only the lesser offense." The Court stated that the only statutory difference between second and third degree burglary is that second degree burglary requires that the building entered into be a dwelling. The Court concluded that because the evidence cannot be construed to show that the building was not a dwelling, since the house did not lose its character as a dwelling, Defendant did not meet the second test, and it was therefore not error to exclude the instructions for third degree burglary.