In deciding which view of King is correct, the appropriate
starting point is the common law of burglary since, according
to the King Court, the element of entry still retains its
common law meaning in New York. See King, 61 N.Y.2d at 555, 463
N.E.2d at 603, 475 N.Y.S.2d at 262. At common law, burglary was
the breaking and entering of a dwelling house at night with the
intent to commit a felony therein. The predominate impetus of
common law burglary was "to protect the security of the home,
and the person within his home." Note, Statutory Burglary —
The Magic of Four Walls and a Roof, 100 U.Pa.L.Rev. 401, 427
(1951). The offense was directed at preserving the internal
security of the dwelling; consequently, an entry into the
structure itself was an essential element of the crime. The
intrusion of any part of the defendant's body, or of an object
held in his hand, was sufficient to establish the element of
entry. Yet there had to be some movement by the defendant
across the external boundaries of the structure, some breaking
of the planes created by the threshold and the four walls. See
3 Wharton's Criminal Law §§ 331-332 (C. Torcia 14th ed. 1980);
4 W. Blackstone, Commentaries on the Laws of England 227 (1988)
(reprint of original edition). Activity conducted outside the
external boundaries of a dwelling, no matter how felonious, was
not burglary at common law.*fn2
The scope of common law burglary was expanded somewhat
through the concept of curtilage. Curtilage was defined as the
area within close proximity to the dwelling house.
See 3 Wharton's Criminal Law, supra, § 336. Outbuildings within
the curtilage were deemed to be part of the dwelling house,
such that an unlawful entry into the outbuilding was burglary.
See id. In essence, then, the effect of the concept of
curtilage was to expand the definition of dwelling house;
however, it did not alter the entry requirement. Thus a
defendant might be convicted of burglary for stealing from a
homeowner's barn, but only if he actually entered within the
four walls of the barn.
Because the common law required that a defendant penetrate
the exterior walls of a structure in order to be guilty of
burglary, such penetration is required for the commission of
statutory burglary in New York. See King, 61 N.Y.2d at 555, 463
N.E.2d at 603, 475 N.Y.S.2d at 262 (entry requirement in
burglary statute adopts common law definition). Thus in this
case, the defendants may be convicted of burglary only if the
government can prove that they actually entered within the four
walls or beneath the roof of the recruiting station.
This conclusion comports with the Court of Appeal's decision
in King and the case law of New York's lower courts. In King,
the vestibule of the jewelry store was within the planes
created by the four exterior walls of the building. See id.
Thus the defendant was guilty of attempted burglary because he
tried to gain entrance to the vestibule. In People v. Bright,
162 A.D.2d 212, 556 N.Y.S.2d 585, 586 (1990), the defendant's
conviction for burglary was upheld where he was apprehended
inside the vestibule area of a store, which was within the area
encompassed by the four walls of the building. In People v.
Pringle, 96 A.D.2d 873, 873-74, 465 N.Y.S.2d 742, 743 (App. Div. 198
3), the defendant's conviction for burglary was upheld where
he entered a separately secured nurse's station within a prison
and committed an assault. The common thread in these cases is
that in all three instances, the defendants actually entered
into the interiors of enclosed and separately secured
In addition to its consonance with the caselaw of New York,
the view of the entry requirement adopted by this Court
comports with the restraints imposed by the rule of lenity.
That rule, sometimes referred to as the principle of legality,
is implicit in the concept of due process. As expressed by the
Supreme Court, the rule of lenity requires that "before a man
can be punished as a criminal under the federal law, his case
must be `plainly and unmistakably'
within the provisions of some statute." United States v.
Gradwell, 243 U.S. 476, 485, 37 S.Ct. 407, 410, 61 L.Ed. 857
(1917) (quoting United States v. Lacher, 134 U.S. 624, 628, 10
S.Ct. 625, 626, 33 L.Ed. 1080 (1890)); see also Papachristou v.
City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31
L.Ed.2d 110 (1972) (criminal statute must give person of
ordinary intelligence fair notice of conduct forbidden by a
statute). Courts should decline to interpret a criminal statute
to encompass situations which a reasonable layperson could not
foresee as being within the ambit of the statute. In this case,
there is little doubt but that the defendants knew that their
actions on the rooftop of the recruiting station violated the
law. Trespass, destruction of government property, reckless
endangerment and perhaps even attempted arson were foreseeable
charges stemming from their conduct. That the defendants could
reasonably have foreseen the charge of burglary is, however, a
much more doubtful proposition.
In sum, this Court is of the view that the New York Penal
Law requires that a defendant actually enter within the four
walls or beneath the roof of a building in order to be guilty
of burglary in the third degree. At trial, the jury will be
instructed that they may not convict the defendants of the
burglary charge unless they find that such an entry occurred.
Of course, if the government presents no evidence of such
entry then the count will be dismissed.
For the reasons given above, defendants' motion to dismiss
the third count of the indictment and their motion to inspect
the grand jury minutes are denied. The government's request
for a ruling on the charge to be given to the jury is granted.
At trial, the jury will be instructed in the manner discussed