The opinion of the court was delivered by: Graffeo, J.:
This opinion is uncorrected and subject to revision before publication in the New York Reports.
In this case involving the violation of an order of protection, we consider whether the mens rea element of burglary may be satisfied by an intent to commit an act that would not be illegal in the absence of the order.
In 2005, defendant Norman Cajigas moved into the apartment where his paramour, Maria, resided with her teenage daughter. He eventually became physically abusive toward the woman and moved out of the dwelling in October 2006. Defendant soon began to stalk Maria on a virtually daily basis. This behavior escalated to a physical assault in November 2006.
After that incident, Maria obtained an order of protection that required defendant to refrain from contacting her in any manner and to stay away from her, her residence and place of work. In April 2007, defendant violated the order by going to Maria's home. He was charged with criminal contempt in the second degree and another order of protection was issued.
The following month, Maria and her daughter moved to a new apartment but defendant's conduct continued, even after he was convicted of the pending second-degree contempt charge. In July, defendant spoke to Maria at a hair salon where she was a patron. Later that day, defendant confronted Maria on the street and did not leave her alone until he saw police officers approaching.
Several days after these incidents, Maria's daughter was home alone when she heard someone trying to open the front door of the apartment. She saw defendant through the peephole and asked him what he wanted. After defendant backed away, the girl telephoned her mother and the police were summoned. Defendant then tried to put something into the lock to open the door. He fled after the girl spoke to him a second time.
Based on this incident, defendant was indicted for attempted burglary in the second degree and several counts of criminal contempt in the first degree. At trial, defense counsel argued that People v Lewis (5 NY3d 546 ) and its progeny prevented the People from using a violation of the order of protection to prove two elements of burglary -- unlawful entry and the intent to commit a crime therein. Although Lewis held that both components cannot be established by the violation of a "stay away" provision, the defense argued that the mens rea element also could not be satisfied by an intention to commit an act that would not be illegal -- such as attempting to communicate with Maria or her daughter -- but for the proscriptions of the order of protection. After extended discussions with counsel, Supreme Court declined to charge the jury as the defense requested, instead instructing that the intent element is established if defendant intended to violate a provision in the order other than the restriction prohibiting him from going to Maria's apartment.
Jury deliberations ensued and, in response to a note from the jury and over defendant's renewed objection, Supreme Court explained that:
"As used in the definition of the crime of burglary, the element of intent -- that is, the intent to commit a crime therein element of burglary -- is not satisfied solely by a defendant's intent to violate an Order of Protection by entering the dwelling that the Order of Protection declares off-limits.
"There must also be evidence that the defendant intended to engage in some of the conduct prohibited by the Order of Protection while in the banned premises beyond just staying away from the home of the person[,] or to engage in another separate crime.
"So, the element requires something beyond the notion of a trespass.
"Before a jury can find the intent to commit a crime therein element satisfied by an intent to violate an Order of Protection, the jury must find that the defendant intended to engage in conduct prohibited by the Order of Protection apart from the prohibition in the Order of Protection [that] the defendant not go to the home of the complainant."
A similar supplemental instruction was issued after the jury sought further clarification.
Defendant was convicted on all counts and adjudicated a second violent felony offender. He was sentenced to 61/2 years in prison, along with 5 years of postrelease supervision. The Appellate Division affirmed, concluding that it was proper to deny defendant's proposed jury instruction (82 AD3d 544, 546 [1st Dept ...