A No, not as bright as the camera flash.
Q Substantially darker correct?
A Yes.
Q And the same is true of Exhibits 4 and 5 which are pictures of the outside of the van is that correct?
A Yes.
Q So when you say that the pictures fairly and accurately depict what the van looked like on April 27th, you’re neglecting to mention that the pictures make the van and the area around the van appear brighter than they were on that night right?
A I said, the pictures are brighter.
DEFENSE COUNSEL: No objection.
THE COURT: 1, 2, 4 and 5 are received.
(Whereupon, Exhibits are marked as People’s 1 and 2 and 4 and 5 in evidence)
DEFENSE COUNSEL: May I inquire?
THE COURT: Yes.
CROSS EXAMINATION BY DEFENSE COUNSEL:
Q The first time you saw Mr. Hurtado was inside the van?
A Yes.
Q When you asked him to exit the van did he do so?
A Yes.
Q Prior to that had you seen him outside of the van?
A Before I asked him to get out?
Q Yes.
A No.
Q The light you’re saying Mr. Hurtado had, did he have that light inside or outside of the van?
A Inside.
DEFENSE COUNSEL: Nothing further
THE COURT: You may step down, sir. Thank you.
Call your next witness please.
MR. McSLAPPAHAN: The People call Police Officer Parker Leary.
Whereupon, the WITNESS, POLICE OFFICER PARKER LEARY, having been called on behalf of the PEOPLE, first having been duly sworn, was examined and testified as follows:
THE CLERK: State your name, spelling your last name. Give your shield and present command for the record.
THE WITNESS: My name is Police Officer Parker Leary. L-E-A-R-Y. Midtown South Precinct New York County. Shield number 36785.
MR. McSLAPPAHAN: May I proceed?
THE COURT: Yes.
DIRECT EXAMINATION BY MR. McSLAPPAHAN:
Q Good morning, Officer.
A Morning.
Q How long have you been assigned to the Midtown South precinct?
A Seven and a half years.
Q Before you were assigned to the precinct where were you before that?
A I was six months in the Police Academy and six months in the NSU-1.
Q How many years in total have you been a Police Officer?
A Eight and a half years.
Q What is your current rank?
A Police Officer.
Q In the Midtown South Precinct what unit are you assigned to? Any specific unit?
A Yes. I’m assigned to the burglary unit.
Q Can you just briefly describe what your duties and responsibilities are?
A I drive around in an unmarked car in plain clothes basically looking for burglars.
DEFENSE COUNSEL: Objection.
THE COURT: Overruled.
Q I want to direct your attention to April 27th of last year. Were you working on that day?
A Yes.
Q Can you tell us what hours you were working?
A I was doing an 11:15 p.m. to 7:50 a.m. tour.
Q Were you working with a partner on that day?
A Yes.
Q What was his name?
A Police Officer Santiago.
Q On that date were you in plain clothes or uniform?
A Plain clothes.
Q Were you in a marked or unmarked police car?
A Unmarked.
Q Did you make an arrest on that day?
A Yes.
Q Who did you arrest?
A Juan Hurtado.
Q Do you see that person in the courtroom here today?
A Yes, I do.
Q Can you please point to him and identify an article of clothing he’s wearing?
A He’s sitting right there with a yellow tee shirt and striped button down shirt.
MR McSLAPPAHAN: Let the record reflect he has indicated the defendant.
THE COURT: The record will reflect the identification
Q I want to direct you attention to April 27th of last year. At that time did you receive a radio transmission?
A Yes.
Q Where were you when you received that?
A Approximately 38th Street and Sixth Avenue.
Q What did you do following the receipt of that radio transmission?
A I went directly to the location.
Q What location is that?
A 208 West 35th Street.
Q What is at that location?
A It’s a church.
Q Do you remember the name of the church?
A Holy Entreaty I believe.
Q What direction does west—what direction does traffic flow?
A Westbound.
Q What side of the street is the church on; the uptown or downtown side?
A Downtown side.
Q When you arrived there where did you park your vehicle?
A I parked my vehicle right in front of the entrance to the church behind the white van.
Q Is that on the downtown or uptown side?
A Downtown side.
Q Who did you see, who was the first person that you saw at that time?
A Jerry Bolo.
Q Did you exit your vehicle at that time?
A Yes.
Q Did you have an opportunity to speak with Mr. Bolo?
A Yes, I did.
Q At that time did you notice any damage to any vans in that location?
A Yes. There was broken windows on the van that was parked directly in front of me on the driver’s side window.
Q Can you describe that van?
A Yes. It was a Dodge white van. Had two rear windows on—two windows on the passenger side and the window on the driver’s side and passenger side front door.
Q Are you able to see inside the cargo area of the van from the window on the sides?
A Yes.
Q Now, after you arrived at that location and had spoken to Mr. Bolo, did you have an opportunity to look inside the van?
A Yes, I did.
Q And what did you see inside the van?
A There was—I seen basically construction equipment there was drop cloths, portable lights, closed boxes, a couple five gallon cans.
Q I’m going to ask you to take a look at People’s Exhibits 1, 2, 4, and 5. Did you take those photographs?
A Yes, I did.
Q Did you take those photographs on April 27th?
A Yes, I did.
Q Are those photographs fair and accurate depictions of what the van looked like on the inside on April 27th?
A Yes.
Q What was inside the van?
A It was drop cloths, portable lights, five gallon cans, a broom. It looks like some sheet rock.
Q In addition to the broken window on the front driver’s side did you notice any damage to the vehicle?
A No.
Q And after that did you have an opportunity to go into the church?
A Yes, I did.
Q And did you have an opportunity—was it at that time that you placed the defendant under arrest?
A Yes, it was.
Q Was Mr. Bolo present at that time?
A Yes, he was.
Q What if anything did you recover from the defendant?
A I recovered a yellow-handled screw driver with a sharpened edge.
Q I’m going to ask you to take a look at People’s Exhibit 3. Do you recognize that exhibit Officer Leary?
A Yes, I do.
Q What is that?
A It’s the yellow-handled screwdriver.
Q Where did you recover that?
A From the defendant’s right front jacket pocket.
Q How do you know that that is the screwdriver that you recovered from the defendant on April 27th?
A It’s got my initials on it.
Q From the time you recove
red it what did you do after you recovered that?
A I take it into my possession and I take it back to the stationhouse, I do—I prepare a property clerk’s invoice. I put it in an envelope, put my initials on the item first. Put it in an envelope and seal it up.
Q Did there come a time when you recovered it from the defendant until you submitted it—until you vouchered it, did that leave your possession?
A No, it didn’t.
Q You mentioned that you have your initials on that?
A Yes, I do.
Q Is that in the same or substantially the same condition as when you recovered it on April 27th?
A Yes, it is.
MR.McSLAPPAHAN: I do not have any further questions of this witness at this time.
CROSS EXAMINATION BY DEFENSE COUNSEL:
Q Good morning, or afternoon at this point I guess.
A Good afternoon.
Q Where was Mr. Hurtado when you first saw him?
A In the church.
Q Did you ever see him near the van?
A No.
Q Did you take any pictures of the van other than the four you’ve been shown by the DA?
A No.
Q Did you speak to Mr. Bolo about what happened?
A Yes.
Q Did you ask him what the van was used for?
A He said the van was used for—
Q Hold on. Not responsive judge.
THE COURT: Listen to the question asked and answer only that question.
THE WITNESS: Yes
Q Did you ask Mr. Bolo what the van was used for?
A Yes.
DEFENSE COUNSEL: Nothing further
THE COURT: Any redirect?
MR. McSLAPPAHAN: No, Your Honor.
THE COURT: You may step down, thank you.
THE COURT: Call your next witness please.
MR. McSLAPPAHAN: Your Honor, the People do not have any further witnesses in this case, and the People rest at this time.
THE COURT: Counsel, will there be a defense case?
DEFENSE COUNSEL: No, and except for the matter we discussed earlier off the record the defense rests as well.
THE COURT: Very well. Ladies and gentlemen. You have now heard all of the witnesses you are going to hear in this case. The attorneys and I have some matters to take care of before you will hear summations so we are going to break for lunch early. Come back at 2:15 to hear summations. I will then instruct you on the law and the case will be yours to begin deliberations.
Remember my admonitions. Do not discuss the case with anyone. Do not form any opinions as it is not yet time to deliberate. Keep an open mind and we’ll see you at 2:15. (Whereupon, jurors leave courtroom.)
THE COURT: Counsel, as we discussed I will hear your motion now as if it were made directly after the end of the People’s case and prior to the defense resting.
DEFENSE COUNSEL: Thank you. The People have not presented legally sufficient evidence that the defendant committed the only crime charged in this indictment. Therefore I’m moving for a trial order of dismissal under CPL 300.40. The instant indictment contains the single count of Burglary in the Third Degree, Penal Law section 140.20, a class D nonviolent felony. That statute states that, quote, A PERSON IS GUILTY OF BURGLARY IN THE THIRD DEGREE WHEN HE KNOWINGLY ENTERS OR REMAINS UNLAWFULLY IN A BUILDING WITH INTENT TO COMMIT A CRIME THEREIN, end quote.
THE COURT: Counsel, I’m familiar with the Penal Law, perhaps you can proceed to the gist of your argument.
DEFENSE COUNSEL: I need to proceed in this manner, judge, because I don’t want there to be any future confusion as to precisely what it is I’m arguing here. The term “building” as used in Penal Law 140.20 is defined in Penal Law section 140.00 subsection 2. The relevant portion of that definition, since it is the one relied on by the People in their theory of the case, is quote, ANY VEHICLE USED BY PERSONS FOR CARRYING ON BUSINESS THEREIN, end quote.
My argument for why the People have failed to meet their burden is this: The People have not put forth sufficient evidence that the defendant knew, at the time he broke into the van, that said van was used by persons for carrying on business therein, i.e. that it was a building, a necessary element of Burglary in the Third Degree as it relates to this case.
THE COURT: Counsel, it’s irrelevant whether or not your client knew when he broke into that van that under New York law a van used for business is a building.
DEFENSE COUNSEL: I agree that my client’s knowledge of New York law is, as always, irrelevant. That is not my argument.
THE COURT: What is your argument? Because it makes no sense to me.
DEFENSE COUNSEL: The argument is that in this case the People must prove beyond a reasonable doubt that, at the time he broke into the van, the defendant knew that the van was used to conduct business therein.
THE COURT: The People most certainly do not have to prove that, they simply have to prove that it is a building as that term is defined in the statute. Whether your client knew that that was the state of the law at the time is irrelevant.
DEFENSE COUNSEL: Again, I’m not talking about my client’s knowledge of the law. I’m simply talking about whether or not he knew that the van he was breaking into was a van used to conduct business. It’s clear that 140.20 has just such a mens rea requirement. If you look at Article 15 of the Penal Law, where general principles of culpability are set forth, that fact becomes undeniably evident. Specifically, Penal Law section 15.15, subdivision 1, states that when a statute defining an offense requires a particular culpable mental state, as the instant statute does with the term “knowingly”, then that culpable mental state is presumed to apply to every element of the offense unless an attempt to limit its application clearly appears.
Here, there is no such attempt at a limit. So when the term “knowingly” is used in 140.20 it applies to every element of the crime according to 15.15. An element of the crime here is that the van was used for business purposes. The People must prove every element of 140.20 beyond a reasonable doubt. By extension they must prove beyond a reasonable doubt that the defendant knew that the van was used for business purposes.
They have so utterly failed to do so here that the case shouldn’t even get to the jury for deliberations but should instead be dismissed. The testimony was that the defendant was found in a van that had been left unattended on a dark street at 11:30 p.m. There was no testimony that the van had commercial plates, or commercial lettering on the side, or anything else that would unequivocally delineate it as a van used for commercial purposes. According to the complainant, he had just checked on the van ten minutes before coming upon the defendant. Therefore, adjusting for the time it takes to break into the van, the evidence strongly suggests that the defendant did not spend a great deal of time in the presence of the van before breaking in. The majority of vans are not used by businesses for commercial purposes so a person is justified in believing that a van they are breaking into belongs to this non-commercial majority. The People must overcome that presumption with proof that the defendant knew the vehicle was used to conduct business therein and they have failed to do so. Accordingly, the case should be dismissed. Thank you.
MR. McSLAPPAHAN: Your Honor, may I respond?
THE COURT: Yes.
MR. McSLAPPAHAN: Your Honor, as you’re well aware, a motion by the defense at this time must be viewed in a light most favorable to the People. And addressing the argument that defense counsel has made as far as the knowledge requirement, Your Honor, the ignorance of the law is no excuse. Whether or not this defendant knew what type of van this was is not enough at this point, or it does prove—we’ve proved beyond a reasonable doubt that he knowingly and unlawfully entered into a building. That goes to matters of law that Your Honor will instruct the jury, and is not necessary for the defendant to know that the vehicle that he’s entered into is carried on for commercial business. Arguably he did know.
Once he got inside there were various forms and types of equipment that were
inside, all over the van, which we can see on those photographs. And my position is that for the defendant to commit this crime he has to knowingly and unlawfully enter and remain in a building. As is instructed by Your Honor, it is not necessary for defense—for the defendant to know he’s entering into a commercial van necessarily and I ask that defense counsel’s motion be denied in its entirety.
DEFENSE COUNSEL: Judge, before you rule on the motion, I need to point out two instances where Mr. McSlappahan misstates the law. First, he suggests that the defendant’s knowledge that the van is used for commercial purposes can arise after his entry and still satisfy the mens rea requirement of Burg Three by retroactively attaching to the specific time in the past when the defendant entered the van and that is plainly wrong.
THE COURT: Not true.
DEFENSE COUNSEL: There’s the case of People versus Gaines.
THE COURT: There may very well be, but you’re ignoring the other portion of the statute in doing so.
DEFENSE COUNSEL: The statute?
THE COURT: Yes, sir.
DEFENSE COUNSEL: I assume you’re referring to the portion of the statute that proscribes remaining in an area unlawfully. That portion of the statute is inapplicable to these facts. The Court of Appeals in People versus Lacotta, 320 New York 2nd, 53, held that when the statute refers to remaining in an area unlawfully it is referring to instances where someone engages in a lawful initial entry but then proceeds to remain unlawfully, for example, their license or privilege to be in the area runs out, but the person stays there with the intent to commit a crime. The Lacotta court ruled that this portion of the statute refers only to this particular form of burglary, which is inapplicable here where the People allege that the defendant entered the van unlawfully from the outset. So I think it’s clear that here the People must prove that the requisite mens rea existed at the time of the defendant’s entry into that van.
Secondly, the DA did not in any meaningful way respond to the interpretation of the statute that I urge this court to adopt, other than repeatedly referring to the defendant’s knowledge of the law, which I have already conceded is irrelevant, and making conclusory and legally unsupported claims that the defendant does not need to know that the van is used for commercial purposes. This is simply not an accurate statement of the law. The Penal Law is clear in Article 15 that a statute written in this manner, with a reference to knowingly entering a building, does confer upon the People an obligation to prove that my client knew it was a building. Burg Three is not a strict liability crime. The mental state of knowingly applies to all terms of the statute, including any attendant circumstances. The fact that the van was used for commercial purposes is precisely such a circumstance.
A Naked Singularity: A Novel Page 37
