A Naked Singularity: A Novel (48 page)

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.

THE COURT
: Anything further?

MR. McSLAPPAHAN
: Your Honor, the only thing I would like to add further is that based upon that reasoning and logic it would require each defendant to have intricate knowledge of the law of what a building defines and that is not required to make out the burglary count that the defendant has been indicted for.

THE COURT
: This is a motion at the close of the People’s case that relies upon some interesting factual misstatements. As I heard the testimony in this case the witness, Mr. Bolo, indicated that the truck had lettering identifying the van on the side. So that rather than being just a plain white van, there was undeniably, or at least it was clearly identified as being the van of the business company. And of course he also said there were ladders that were kept on the top of the van a well. But all of that is somewhat irrelevant, as the People are under no obligation to prove that the defendant knew that under the law the van was a building.

DEFENSE COUNSEL
: Again, the defense is not that the defendant was ignorant of the law rather that he was ignorant of a necessary circumstance and that said ignorance negated his mental culpability. Also Bolo did not say the van had company lettering he said it had lettering, which every automobile has.

THE COURT
: Motion denied. Return at 2:15 to sum up.

DEFENSE COUNSEL
: Are we going to have a charge conference?

THE COURT
: I suppose if you have it that would be fine.

DEFENSE COUNSEL
: I’m asking that you instruct the jury that the People have to prove that at the time he entered the van the defendant knew that it was used to conduct business therein. I’m handing up to the Court, with a copy for the DA, the specific instruction that I’m requesting.

THE COURT
: I will charge the jury with respect to the language of the statute. Is there anything else?

DEFENSE COUNSEL
: Are you going to charge them that the term knowingly applies to the status of the van as well?

THE COURT
: I will charge them with respect to the language of the statute as precisely as is—as suggested by the CJI instructions. Is there anything further?

DEFENSE COUNSEL
: The CJI doesn’t—

THE COURT
: Yes, I know it doesn’t.

DEFENSE COUNSEL
: Then I need to make a record as to why I believe that’s a necessary charge here.

THE COURT
: I think you’ve been doing that for the past ten minutes. Is there something additional you have to add?

DEFENSE COUNSEL
: That was a motion to dismiss.

THE COURT
: I understand that.

DEFENSE COUNSEL
: With a different applicable standard and other considerations. Then I was asking you to dismiss the case, which is admittedly a severe remedy. Now I’m simply asking you to properly instruct the jury as to the state of the law so they may decide if the People have met their burden.

THE COURT
: Is there anything new that you think you—

DEFENSE COUNSEL
: Yes.

THE COURT
: Counsel is, do you have additional material that you didn’t mention before that you have to say now?

DEFENSE COUNSEL
: Yes. Under New York law, specifically Penal Law 15.20 subsection 1(a), a factual mistake that negates a culpable mental state is a defense. That is the nature of the defense in this case. If Mr. Hurtado broke into a commercial van with the mistaken belief that it was an ordinary automobile then he did not have the requisite mental culpability to be guilty of Burg Three and is instead guilty of Auto Stripping or Petit Larceny. Because those charges are not on the indictment the jury’s only option is to acquit if they do not believe the People have proved that the defendant knew the special nature of the van.