Whether a school building containing a bed could be considered to be "usually occupied by a person lodging therein at night," and therefore constituted a "dwelling" within the meaning of Penal Law § 140.00(3).
No. The suggestion that the existence of a bed in the school converts the school into a dwelling ignores the "usually occupied" standard of Penal Law § 140.00(3), and relies on the previous standard of physical presence to determine what constitutes a dwelling. The fact that the school was usually not a place for lodging, coupled with the infrequent use of the bed for overnight stays was insufficient to establish the school as a "dwelling" within the meaning of Penal Law § 140.00(3).
On June 6, 1993, defendant Quattlebaum broke into the Convent School of the Religious of the Sacred Heart and took various items. At that time, an office on the fifth floor contained a bed, which was used for overnight guests between twenty and thirty times per year. The Appellate Division found the existence of this bed sufficient to make the school a dwelling within the second degree burglary statute and convicted Quattlebaum under Penal Law § 140.00(3). Quattlebaum conceded to the Court of Appeals that he committed burglary, but contested the degree of burglary that applied.
The Court of Appeals held that the existence of the bed in the school was insufficient to support a finding that the school building was a "dwelling." First, the court concluded that the nature of the school was such that it was not adapted for occupancy at the time of the wrongful entry. Second, the court decided that while the bed could have been occupied overnight, the amount of times the bed was used for lodging was insufficient to conclude that the bed was "usually occupied by a person lodging therein at night." The Court of Appeals relied on the "usually occupied" requirement of Penal Law § 140.00(3), found the school was not a dwelling, reduced the two counts of burglary, and remitted to the Supreme Court for re-sentencing.
Prepared by the liibulletin-ny Editorial Board.