If a Criminal Defendant Entered a House With Consent Can His Subsequent Act of Crime Convert a Lawful Entry Into An Unlawful Entry
In People v. Hutchinson, 124 Misc. 2d 487, 477 N.Y.S.2d 965, 968 (Sup. Ct. 1984), aff'd, 121 A.D.2d 849, 503 N.Y.S.2d 702 (App. Div. 1986), appeal denied, 498 N.E.2d 156 (N.Y. 1986), the court held that once a person is lawfully on the premises, "there must be something more to establish termination of license than the commission of a criminal act or an order to leave after a criminal intention is manifested."
The State argued that a defendant violated this statute when he entered a private home with permission but subsequently pulled a knife on the owner.
The State reasoned that upon pulling the knife, any consent was automatically revoked.
The court rejected this argument and reasoning, holding that if a criminal defendant entered with consent, his subsequent commission of a criminal act alone could not convert a lawful entry into an unlawful remaining sufficient to sustain a burglary charge.
The court stated:
[The State's] reasoning impermissibly broadens the scope of liability for burglary, making a burglar of anyone who commits a crime on someone else's premises.
It erroneously merges two separate and independent elements that must coexist to establish burglary: First, the trespassory element of entry or remaining without license or privilege; Second, intent to commit a crime.
An intrusion without license or privilege (unlawful entry) is the distinguishing element, the essence of burglary.
It must be established separately and distinctly from the intention to commit a crime.
The mere fact that a crime was committed or was intended is an insufficient basis for finding that the entry or remaining was without privilege or authority. 477 N.Y.S.2d at 967.
The court recognized that the State was improperly using the criminal act to prove both intent and revocation of license or privilege.
The court further stated:
If this jury concludes that the defendant was in the complainant's apartment with genuine license, that is, with her consent obtained without deceit, the fact that he was unwelcome after he pulled the knife does not convert his licensed entry into an unlawful remaining.
His licensed presence there is not revoked by the commission of a criminal act. Id. at 968.