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NYC Criminal Defense Attorney

The Definition of "Dwelling" is Clarified in 2014


The Law Office of Lance Fletcher Reviews 2014's Biggest Changes in Criminal Law

What Exactly is a "Dwelling Burglary"?

What happens if a burglary happens in a non-residential part of a building but the building overall is residential in nature? Can you still be charged with a "dwelling" burglary? According to the New York Court of Appeals' ruling in People v. McCray, if a burglary occurs on a ground floor commercial space of an otherwise residential (apartments, living spaces) building, then it qualifies as a "dwelling" burglary. The answer would not be clear however if a burglary occurred in a large building that has both residential and non residential characteristics.

For example, in McCray, McCray was convicted of two burglaries committed inside of a very large building that had both residential and non-residential areas. The building had a wax museum on lower floors and a Hilton hotel from the 14th floor on upward. The hotel lobby was on the 14th floor along with employee locker rooms. Conference rooms were on the 16th floor and guest rooms were on the 17th floor and above. McCray was accused of burglarizing the locker room on the 14th floor and then of going downstairs to burglarize the museum. The Court found that both the locker room and museum were "dwellings" but said that the museum burglary "just barely" qualified as a dwelling burglary.

The reasoning was that McCray used a stairway to access the museum that was connected to the hotel lobby. It was noted that if McCray had accessed the museum in a different way, for example, from the street without ever entering the connecting stairway, then perhaps it would not be a dwelling burglary.

The court stated that factors in considering whether a dwelling burglary occurred are:

  1. Distance between the burgled area to the residential area,
  2. Ease of passage between them, and
  3. The use of a means of easy access to the residential area