Sergio De La Pava - A Naked Singularity

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.

For the reasons I stated earlier, I believe there is a reasonable view of the evidence that the defendant did not know the van was used for commercial purposes. For that reason, and the clear state of the law, I believe that the instruction I’ve requested is necessary if my client is to receive a fair trial.

You indicated earlier that you don’t believe my interpretation of the law is correct. I mentioned Article 15 of the Penal Law earlier and a further argument stemming from that section occurs to me now. Specifically, in McKinney’s, the practice commentaries to Penal Law 15.15, section 1 refers to Trespassing in the Third Degree, Penal Law 140.15. There, the commentator states that for someone to be guilty of that crime they must not only knowingly enter or remain in a dwelling but they must also know that it is a dwelling. This seems perfectly analogous to our case where the statute for Burg Three is worded identically in its relevant parts.

Why would it be any different here? Why would there be a less rigorous requirement of proof for a felony than for a misdemeanor like Trespass Three? To remove this requirement from Burg Three is to transform it into a strict liability crime, something strongly disfavored by the Penal Law.