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People v. Mullally

Supreme Court, Queens County

January 7, 2013

The People of the State of New York
Shaun Mullally, Defendant.

Michael P. Mangan, Esq., for defendant.

Richard A. Brown, District Attorney, County of Queens (Carly Volero, of Counsel) for plaintiff.


After a jury trial, defendant, Shaun Mullally, was convicted of Criminal Trespass in the Second Degree (Penal Law § 140.15) and acquitted of Burglary in the Second Degree (Penal Law § 140.25 [2]) and related charges. Defendant now moves to set aside the guilty verdict pursuant to Criminal Procedure Law § 330.30 (1), arguing that his conviction requires reversal as a matter of law because the trial evidence was legally insufficient to establish second-degree trespass. Specifically, defendant contends that the building that he was convicted of illegally entering does not constitute a "dwelling" as defined by Penal Law § 140.00 (3). The People oppose the motion, contending that the home constitutes a dwelling.

Defendant's motion requires the Court to examine important questions regarding the definition of a dwelling under the trespass and burglary statute where the New York City Department of Buildings issues a "Vacate Order" associated with a home damaged in a fire. More specifically, defendant's motion requires the Court to decide whether a fire-damaged home may be deemed to be a dwelling — that is, a "building" "usually occupied by a person lodging therein at night" — even though the evidence demonstrated that no one actually slept at the home at night during an 8-month period in which a Vacate Order was in effect. Resolution of this issue is important given the precipitous increase in burglary-related offenses arising from alleged looting of flood-damaged homes in Queens County during the immediate aftermath of Hurricane Sandy (see Areas Hit Hard by Hurricane Sandy Suffer Big Rise in Burglaries, [accessed Jan. 7, 2013] [reporting a "1, 020% jump from the burglaries investigated during the same period last year" in the coastal neighborhoods of Rockaway and Breezy Point]). Because this Court finds that the fire-damaged building in this case was a dwelling — a "building which is usually occupied by a person lodging therein at night" (Penal Law § 140.00 [3]) — as defined by the statute, defendant's motion is denied in its entirety.

Criminal Procedure Law § 330.30 (1) allows a court to grant a motion to set aside the verdict based on "[a]ny ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court" (see People v. Carter, 63 N.Y.2d 530, 536 [1984]). It is well established that a court reviewing a legal sufficiency claim must affirm a defendant's judgment of conviction if " any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt'" (People v. Contes, 60 N.Y.2d 620, 621 [1983], quoting Jackson v. Virginia, 443 U.S. 307, 319 [1979] [emphasis in original]). Moreover, the evidence must be viewed in a light most favorable to the People (People v. Ford, 66 N.Y.2d 428, 437 [1985]; People v. Arena, 284 A.D.2d 545 [2d Dept 2001]).

Here, there is no question that defendant asserted a "ground" for dismissal of the trespass charge by moving on "the record" to dismiss that charge after the close of the People's case and after the close of all the evidence. Nor is there any question that the current motion is identical to the very "ground" defendant raised during the trial. The only remaining question is whether the Court properly denied the dismissal motion. [1]

In the instant case, during the jury trial complainants Thomas Donlon and Mario Mitarotunda testified for the People. The evidence, viewed in a light most favorable to the prosecution, demonstrated that in April 2005, a fire emanating from loose wires attached to a Con Edison pole damaged numerous homes on a street in Glendale, Queens, including a two-family house that Thomas Donlon had owned for the past forty-five years. The ensuing smoke and water damage prompted the New York City Department of Buildings to issue a temporary "Vacate Order, " which, in turn, prompted Mr. Donlon, his son-in-law, Mario Mitarotunda, and other family members to temporarily vacate the structure and find lodging elsewhere.

In June 2005, almost two months after the fire, the house lacked electricity, certain windows had been boarded up, there were holes inside some of the sheet rock, and there was damage to some portions of the exterior of the building and the roof. Mr. Donlon's basement apartment, however, "didn't have too much damage" and his property in the basement was "not damaged by the fire." Although the house had been compromised to some extent, the complainants undertook efforts to secure it by locking the front door with a key. Indeed, if someone, such as a Claim Adjuster or City official wished to enter the house, that individual would have to "make an appointment" with Mr. Mitarotunda so that he could "let them in." Also locked on the property was a plywood board fence that had been placed across the common driveway that the complainants shared with their neighbor. Much like the house, entry to the driveway through this fence was only possible with the use of a key.

After the fire, Mr. Mitarotunda went to the house "at least three times during the week" and then "always on weekends" because he feared that the property would be burglarized. Mr. Mitarotunda made one such visit to the house on June 12, 2005. Mr. Donlon also visited the property "often" — "almost everyday" — to "check on it." He was there on June 13, 2005. The complainants kept the vast majority of their belongings, including furniture, beds, and other personal items not destroyed by the fire, inside their respective apartments at the premises. The only property that Mr. Donlon removed from his house during the period that the Vacate Order was in effect was some clothing and his golf clubs. Mr. Mitarotounda also removed a limited number of items from his apartment. Because the complainants had suffered some property loss, both filed insurance claims.

On the morning of June 14, 2005, Mr. Donlon went to his house. After unlocking the front door with his key, Mr. Donlon observed certain damage inside the home, including broken molding around Mr. Mitarotunda's entrance door and a broken window in the basement. Upon making this observation, Mr. Donlon called his son-in-law, Mr. Mitarotunda, who called the police. The police ultimately recovered a beer bottle and cigarette butt, both of which contained defendant's DNA, from inside the house. There was also evidence presented during the trial that defendant worked as a laborer in one of the other fire-damaged houses which shared a driveway with the Donlon home at around the time that the beer bottle and cigarette were discovered.

One month after the trespass, Mr. Donlon and Mr. Mitarotunda began to make several improvements to the house, including the installation of a gate on the basement window. By December 24, 2005, Mr. Donlon had moved back into his property.

The defendant argues that the verdict must be set aside because the People failed to establish that the building that defendant was convicted of illegally entering was a dwelling as defined by the statue. In opposition, the People argue that the building in question was a "dwelling." A person is guilty of Criminal Trespass in the Second Degree, as defined in

Penal Law § 140.15, "when he knowingly enters or remains unlawfully in a dwelling." A dwelling is defined as a "building which is usually occupied by a person lodging therein at night" (Penal Law ...

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