People v. Powell, 448 N.E.2d 797 (N.Y. 1983). · Go Syfert
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People v. Powell, 448 N.E.2d 797 (N.Y. 1983). Cases Citing This Book View Copy Cite
34 citation events (11 in the last 25 years) across 7 distinct courts.
Strongest positive: McKay v. City of New York (nysd, 2014-07-24)
Treatment trajectory · 1983 → 2026 · click a year to view as-of
1983 2004 2026
Top citers, strongest first. 11 distinct citers. How cited ↗
discussed Cited as authority (rule) McKay v. City of New York
S.D.N.Y. · 2014 · confidence medium
In People v. Powell, the Court of Appeals concluded that a defendant who had been apprehended in a private office building after business hours was not on premises “open to the public,” even though the front door was unlocked. 58 N.Y.2d 1009 , 461 N.Y.S.2d 1012 , 448 N.E.2d 797, 797-98 (1983).
discussed Cited as authority (rule) People v. Barksdale
N.Y. App. Div. · 2008 · confidence medium
Each pharmacy area was unmistakably closed to the public notwithstanding the absence of any warning sign or additional security measures (see People v Powell, 58 NY2d 1009, 1010 [1983]), thus establishing the trespass element of burglary.
discussed Cited as authority (rule) People v. Terry
N.Y. App. Div. · 2003 · confidence medium
There was ample evidence, however, that these offices were not open to the public and simply because a door is left unlocked does not preclude finding that an entry was unlawful (see People v Powell, 58 NY2d 1009, 1010 [1983]).
discussed Cited as authority (rule) In re Tyshawn J.
N.Y. App. Div. · 2003 · confidence medium
Here, the evidence, showing that appellant remained upon the subject commercial premises well after the close of the business day, when there was no receptionist at the front desk, the lights were off, and no one else was present in the interior offices, and despite a posted sign unequivocally instructing that visitors were not to go beyond the reception area unless they rang the bell, provided ample basis for the factfinder to infer that appellant knew that the premises were not at the time open to the public (see People v Powell, 58 NY2d 1009, 1010 [1983]; People v Mason, 292 AD2d 294 [2002]…
discussed Cited "see" People v. Bethune
N.Y. App. Div. · 2009 · signal: see · confidence high
Such a “clearly . . . private area . . . was not open to the public” (People v Thomas, 38 AD3d 1134, 1135 [2007], lv denied 9 NY3d 852 [2007]; see People v Powell, 58 NY2d 1009, 1010 [1983]; People v Daniels, 8 AD3d 1022, 1022-1023 [2004], lv denied 3 NY3d 705 [2004]; People v Durecot, 224 AD2d 264, 264-265 [1996], lv denied 88 NY2d 878 [1996]; People v Lloyd, 180 AD2d 527, 527-528 [1992], lv denied 79 NY2d 1003 [1992]).
discussed Cited "see" People v. Pratt
N.Y. City Crim. Ct. · 1995 · signal: see · confidence high
(People v Brown, 25 NY2d, at 376 , supra [emphasis in original]; see, People v Powell, 58 NY2d 1009 [1983]; Penal Law § 140.00 [5].) In addition, the license and privilege to enter premises open to the public may not be terminated absent a lawful order, personally communicated by an appropriate authority.
discussed Cited "see" People v. Graves
NY · 1990 · signal: see · confidence high
This view of burglary in private premises is consistent with the statutory provisions involving burglary of public buildings, which insulate from liability for that crime "[a] person who, regardless of his intent, enters or remains in or upon premises which are at the time open to the public [since he] does so with license and privilege unless he defies a lawful order not to enter or remain, personally communicated to him by the owner of such premises or other authorized person” (Penal Law § 140.00 [5] [emphasis supplied]; see, People v Powell, 58 NY2d 1009 ; People v Licata, 28 NY2d 113 ).
examined Cited "see, e.g." Gentry v. State (3×)
Ala. Crim. App. · 1991 · signal: see also · confidence low
See also People v. Powell , 58 N.Y.2d 1009 , 448 N.E.2d 797 , 461 N.Y.S.2d 1012 (1983) (burglary conviction sustained where jury could find that though defendant's entry was lawful, he was not licensed to remain because it was apparent from the time of day and absence of people that the offices were no longer open to the public); People v. Racanelli , 132 Ill.
discussed Cited "see, e.g." People v. Gaines
N.Y. App. Div. · 1989 · signal: see also · confidence low
The word "remain” in the phrase "enter or remain” is designed to apply to those cases in which a person enters a building with a license or privilege, but remains in the building after the termination of such license or privilege (People v Licata, 28 NY2d 113, 117 ; Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law art 140; Rothblatt, Revised Penal Law, Criminal Law of New York, § 257; see also, People v Powell, 58 NY2d 1009 ).
examined Cited "see, e.g." Ray v. State (3×)
Fla. Dist. Ct. App. · 1988 · signal: see also · confidence low
See also People v. Powell, 58 N.Y.2d 1009 , 448 N.E.2d 797 , 461 N.Y.S.2d 1012 (1983) (burglary conviction sustained where jury could find that though defendant's entry was lawful, he was not licensed to remain because it was apparent from the time of day and absence of people that the offices were no longer open to the public); People v. Racanelli, 132 Ill.
discussed Cited "see, e.g." People v. Hutchinson
N.Y. Sup. Ct. · 1984 · signal: see also · confidence low
(Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 140.00, p 16; see, also, People v Powell, 58 NY2d 1009 .) In the case of private premises, where license or privilege to enter or remain is conferred by the owner’s consent, the distinction between the two elements of unlicensed entry or remaining and that of intent to commit a crime is not statutorily expressed.
Retrieving the full opinion text from the archive…
The People of the State of New York, Respondent,
v.
Marvin Powell, Appellant
New York Court of Appeals.
Mar 22, 1983.
448 N.E.2d 797
1983 N.Y. LEXIS 2951
APPEARANCES OF COUNSEL, Joseph B. Mistrett and Rose H. Sconiers for appellant., Richard J. Arcara, District Attorney (John J. De Franks and Barbara Davies Eberl of counsel), for respondent.
Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg, Meyer and Simons Concur.
Cited by 25 opinions  |  Published

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

It cannot be said that the evidence was insufficient to sustain the charge of burglary in the third degree simply because the building housed attorneys’ offices and the front door was unlocked. Subdivision 5 of section 140.00 of the Penal Law provides that “A person who * * * enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless he defies a lawful order not to enter or remain” (emphasis supplied). The jury could find on the evidence before it that though defendant’s entry was licensed, he was not licensed to remain because it was apparent after his entry from the time of the day and the absence of any persons in the reception area or individual offices that the building was not “at the time open to the public”.

Nor was it error to decline to charge as requested that “the fact that defendant might have entered with criminal intent does not extinguish his otherwise existing license to[*1011] enter if the jury finds that such a license exists” (cf. People v Brown, 25 NY2d 374). Under the circumstances of this case, the requested charge was irrelevant, the only issue being whether defendant remained after discovering that the apparent license to enter did not exist because the building was not at the time open to the public. On that question the charge as given was sufficient.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg, Meyer and Simons concur.

Order affirmed in a memorandum.