People v. McCargo, 226 A.D.2d 480 (N.Y. App. Div. 1996). · Go Syfert
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People v. McCargo, 226 A.D.2d 480 (N.Y. App. Div. 1996). Cases Citing This Book View Copy Cite
22 citation events (16 in the last 25 years) across 3 distinct courts.
Treatment trajectory · 1996 → 2026 · click a year to view as-of
1996 2011 2026
Top citers, strongest first. 6 distinct citers. How cited ↗
discussed Cited as authority (rule) People v. Mosley
N.Y. App. Div. · 2021 · confidence medium
Despite testimony that defendant had, on occasion, been permitted to spend time at the victim's apartment, "it does not follow from that testimony that defendant had permission to enter the dwelling without the owner's knowledge or invitation" ( People v Little , 139 AD3d 1356 , 1356 [4th Dept 2016], lv denied 28 NY3d 933 [2016]), particularly where there was no evidence that defendant also lived at the apartment ( cf. People v McCargo , 226 AD2d 480, 480-481 [2d Dept 1996]).
discussed Cited as authority (rule) People v. Troche
N.Y. App. Div. · 2011 · confidence medium
Contrary to the defendant’s contention, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that it was legally sufficient to establish his guilt of burglary in the second degree (see People v Liotta, 274 AD2d 751, 753 [2000]; People v Morgan, 259 AD2d 771, 772-773 [1999]; People v Jordan, 193 AD2d 890, 894 [1993]; People v Barak, 185 AD2d 278, 279 [1992]; People v Quinones, 173 AD2d 395, 396 [1991]; People v Bell, 131 AD2d 859, 861 [1987]; cf. People v Tennant, 285 AD2d 817, 819 [2001]; People v McCargo, 226 AD2d 480, 4…
discussed Cited as authority (rule) People v. Bethune
N.Y. App. Div. · 2009 · confidence medium
Finally, defendant’s claim that he had entered the plant several days previously without objection does not demonstrate that he was licensed to enter on either occasion or that he reasonably believed that he was licensed do so (compare People v Tennant, 285 AD2d 817, 818-819 [2001]; People v McCargo, 226 AD2d 480, 480-481 [1996]; People v Uloth, 201 AD2d 926, 926-927 [1994]).
cited Cited as authority (rule) People v. Quattlebaum
N.Y. App. Div. · 2009 · confidence medium
Thereafter, the burden shifted to the defendant to demonstrate that the People’s explanation was pretextual (see People v Allen, 86 NY2d at 111 ; People v McCargo, 226 AD2d 480, 481 [1996] ).
discussed Cited as authority (rule) People v. Scott
N.Y. Sup. Ct. · 2003 · confidence medium
The statute does not define “license and privilege.” Courts have stated that a “person is ‘licensed or privileged’ to enter a premises when he [she] has obtained the consent of the owner or another whose relationship to the premises gives him authority to issue consent” (People v Graves, 76 NY2d 16, 20 [1990]; People v McCargo, 226 AD2d 480, 481 [1996]).
discussed Cited as authority (rule) State v. Hall
Or. Ct. App. · 2002 · confidence medium
Conviction for criminal trespass reversed; otherwise affirmed. 1 New York decisions construing the statute on which ORS 164.205(3)(a) was based likewise hold that an owner’s permission generally establishes that entry is “licensed or privileged.” See, e.g., People v. Graves, 555 NE2d 268, 269 (NY 1990) (“In general, a person is ‘licensed or privileged’ to enter private premises when he has obtained the consent of the owner or another whose relationship to the premises gives him authority to issue such consent.”); People v. McCargo, 641 NYS2d 322, 324 (NY App Div 1996) (owner’s …
Retrieving the full opinion text from the archive…
The People of the State of New York
v.
John McCargo
Appellate Division of the Supreme Court of the State of New York.
Apr 8, 1996.
226 A.D.2d 480
Cited by 20 opinions  |  Published

Motion by the respondent on an appeal from a judgment of the County Court, Nassau County, rendered November 4, 1993, to reargue so much of a decision and order of this Court, dated January 16, 1996, as modified the judgment by reversing the defendant’s conviction of burglary in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

Ordered that the motion is denied; and it is further,

Ordered, on the court’s own motion, that the unpublished decision and order of this Court dated January 16, 1996, in the above-entitled case, is recalled and vacated, and the following decision and order is substituted therefor:

Appeal by the defendant from a judgment of the County Court, Nassau County (Mogil, J.), rendered November 4, 1993, convicting him of burglary in the second degree and criminal possession of stolen property in the fifth degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is modified, on the law, by reversing the conviction of burglary in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.

The defendant contends that his conviction of burglary in the second degree was not supported by legally sufficient evidence that he entered the apartment unlawfully. We agree. The charges arose out of an incident in which the defendant, the complainant’s son, entered the complainant’s apartment through a window and stole a videocassette recorder, television, and compact disc player. The defendant was named as a tenant on the lease. However, some time prior to this incident, due to intrafamilial differences, the complainant had asked the defendant to leave the apartment. The complainant testified that she gave the defendant permission to return to their apartment to pick up his personal belongings. She further testified that the defendant’s social security checks were used to purchase items in her apartment and to pay the rent.

[*481] A person may be found guilty of burglary when he "knowingly enters or remains unlawfully” in a dwelling "with intent to commit a crime therein” (Penal Law § 140.25 [2]). A person "enters or remains unlawfully” in or upon a premises when he is not licensed or privileged to do so (Penal Law § 140.00 [5]).

One is "licensed or privileged” to enter upon a premises when he has "obtained the consent of the owner or another whose relationship to the premises gives him authority to issue such consent” (People v Graves, 76 NY2d 16, 20; see also, People v Isidore, 185 AD2d 622; Barker v Parnossa, Inc., 39 NY2d 926; Vaughan v Transit Dev. Co., 222 NY 79).

In view of the circumstances herein, it would have been reasonable for the defendant to conclude that he had a license or privilege to be on the premises. Therefore, the defendant’s belief, even if mistaken, negates the element of knowingly entering or unlawfully remaining necessary for a conviction of burglary. Accordingly, we find that the People failed to prove beyond a reasonable doubt that the defendant’s entry into the apartment was unlawful.

The issue of whether the prosecutor failed to provide a race-neutral explanation for his peremptory challenge of one black juror is unpreserved for appellate review, as this argument was not raised before the trial court (see, CPL 470.05 [2]; People v Parks, 210 AD2d 437). In any event, this contention is without merit. The prosecutor volunteered an explanation for his peremptory challenge of the juror in question. Contrary to the defendant’s contention, the prosecutor satisfied his burden of providing a race-neutral explanation by indicating that he challenged the prospective juror because of her body language and various non-verbal cues. Thereupon, the burden returned to the defendant to prove that the explanation was pretextual. The defendant failed to do so (see, People v Allen, 86 NY2d 101).

The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Mangano, P. J., Balletta, Copertino and Hart, JJ., concur.