THE PEOPLE &C., RESPONDENT, v. FRANKLIN B. BROWN, APPELLANT.
87 N.Y.2d 950, 663 N.E.2d 1255, 641 N.Y.S.2d 225 (1996).
February 15, 1996
4 No. 36(1996 NY Int. 31)
Decided February 15, 1996
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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
Kimberly A. Jordan, for Appellant.
Gary T. Kelder, for Respondent.
MEMORANDUM:
The order of the Appellate Division should be modified by vacating
the conviction of burglary in the third degree and remitting to County
Court, Onondaga County, for a new trial on that count, and, as so
modified, affirmed.
Defendant was charged with burglary in the third degree and other
crimes stemming from his entry into a service station at about 2 a.m.
and theft of money from the cash register. At trial, defendant
testified that he entered the service station solely with the intent
to find the hose that was missing from the outdoor air compressor so
that he could fill the slowly-leaking tire of the bicycle that he was
riding. According to defendant, while searching for the hose, he
encountered the open cash register drawer and, only then decided to
take the money it contained. The trial court properly instructed the
jury on the legal principle that the crime of burglary is committed
when a person knowingly and unlawfully enters a building with the
contemporaneous intent to commit a crime therein (see, People v
Gaines, 74 NY2d 358, 362). During deliberations, however, the jury
sent out the following query: "* * * to be guilty of burglary 3rd,
must the intent be related to the property, 'money' subsequently
taken, or, is the intent to take the hose relevant? If intent to
remove the hose is relevant to the intent issue, does the intent to
appropriate it for temporary use change anything?" The court responded
to the note by stating, over defense objection: "(y)ou must determine
whether or not there was authority or permission granted to do that
with the hose, and whether or not that with the hose was unlawful. As
to your question * * * does temporary use change anything? I think I
have answered that by my last comment to you" (emphasis added).
SNIPPETS:
This memorandum is uncorrected and subject to revision before publication in the New York
Kimberly A. Jordan, for Appellant.
Gary T. Kelder, for Respondent.
The order of the Appellate Division should be modified by vacating the conviction of burglary
Defendant was charged with burglary in the third degree and other crimes stemming from his
defendant testified that he entered the service station solely with the intent to find the
According to defendant, while searching for the hose, he encountered the open cash register
The trial court properly instructed the jury on the legal principle that the crime of
The court responded to the note by stating, over defense objection: "ou must determine
I think I have answered that by my last comment to you" (emphasis added).
Through its responsive instruction, the court erroneously indicated that it was within the
Absent any proof that use of the air was a service for which the station charged, temporary
Chief Judge Kaye and Judges Simons, Titone, Bellacosa, Smith, Levine and Ciparick concur.
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