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What Is the Test of Determining if a Building Is a Dwelling House in New York ?

In People v. Quattlebaum, 91 NY2d 744, 747-748 (1998), the Court of Appeals, noting that "in most cases, the foregoing determination will be a question of fact for the jury based on the particular situation before it," adopted a non-exhaustive list of factors for a court to consider when deciding whether a building is a dwelling.

Those factors, as originally set forth in the case of People v. Sheirod, 124 AD2d 14, 17 (4th Dept 1987), include:

(1) whether the nature of the structure was such that it was adapted for occupancy at the time of the wrongful entry;

(2) the intent of the owner to return;

(3) whether, on the date of the entry, a personcould have occupied the structure overnight" (People v. Quattlebaum 91 NY2d at 748)

In People v. Lowe (284 AD2d 413, 728 NYS2d 167 [2d Dept 2001]), defendant was convicted of second-degree burglary.

At trial, the complainant testified that although he owned the building that the defendant illegally entered, and had made a limited number of renovations to the structure, he never resided in the property himself, and never intended to reside in the property.

The Second Department, relying on the Sheirod factors, held that the building, still under renovation, was not a dwelling.

In rendering this decision, the Court relied on the facts that the building was entirely unfurnished, that no one regarded the building as his or her place of residence, and that it was not readily habitable.