NY homeowner shoots an intruder near Albany, and no charges

[Saltwater60]

Man entered through an unlocked door so no burglary charges. He gets an appearance ticket from police, but a lifetime reminder from the homeowner. One can only hope he learned a lesson.

New York Homeowner Shoots Intruder Inside Family Home

A South Glens Falls homeowner shot a stranger who entered his occupied home before sunrise, according to New York State Police.

gunsamerica.com

 

[Beerman]

Your very first sentence is factually incompatible with the law. Burglary, even in the misguided state of NY, has no “breaking” requirement, nor does an unlocked door summarily dismiss the possibility of burglary. Simply being in an area without permission or privilege meets the threshold of burglary when the intent to commit a crime is a factor. This event certainly meets both. The perp is a burglar.

 

[byron]

Burglary is defined under criminal law as the unlawful entry of a structure with the intent to commit a felony or theft inside. According to the FBI's Uniform Crime Reporting (UCR) Program, actual physical force is not required to classify an offense as a burglary; it can encompass forcible entry, unlawful entry without force (such as walking through an unlocked door), or attempted forcible entry. [1, 2]
Key Legal Elements
To secure a conviction, the prosecution generally must prove two distinct elements:

• Unauthorized Entry: The individual crossed the threshold of a structure (such as a home, apartment, office, or barn) without permission. [1, 2]
• Criminal Intent: The individual intended to commit a crime (most commonly theft, though it can be arson, assault, or another felony) at the moment they entered the structure.
  
  
  [1, 2, 3]

 

[spat]

Your very first sentence is factually incompatible with the law. Burglary, even in the misguided state of NY, has no “breaking” requirement, nor does an unlocked door summarily dismiss the possibility of burglary. Simply being in an area without permission or privilege meets the threshold of burglary when the intent to commit a crime is a factor. This event certainly meets both. The perp is a burglar.

While that's true legally, the "breaking" part can be considered by a prosecutor when deciding what to charge the defendant with.

 

[Saltwater60]

Your very first sentence is factually incompatible with the law. Burglary, even in the misguided state of NY, has no “breaking” requirement, nor does an unlocked door summarily dismiss the possibility of burglary. Simply being in an area without permission or privilege meets the threshold of burglary when the intent to commit a crime is a factor. This event certainly meets both. The perp is a burglar.

Someone didn’t read the article. I reported what the article stated. It’s not my decision or interpretation and that’s why I reported it because I was surprised as well.
Directly copied from the article. I’m confused as well.
State Police charged Jarvis with second-degree criminal trespass, a Class A misdemeanor. Investigators said he entered through an unlocked door without using force. That detail reportedly prevented authorities from pursuing a burglary charge.

 

[Beerman]

While that's true legally, the "breaking" part can be considered by a prosecutor when deciding what to charge the defendant with.

I like the legal truth. Are we a nation of laws, or are we a nation of gray areas and feelings?

 

[S&W Fan]

I like the legal truth. Are we a nation of laws, or are we a nation of gray areas and feelings?

Unfortunately with this state and its new bail reform laws it is a state of gray areas and feelings.

 

[S&W Fan]

Having just recently finished serving on a Grand Jury indictment panel for the last 6 weeks, sitting through hours of testimony in 30 Different cases I can tell you first hand that the DA’s will only charge the perps with the charges that they know they have the best chance of making stick and getting a jury to convict. Lesser charges are often tossed in favor of focusing on the stronger charges.
Even then they will flat out tell you frustratingly that with the new bail reform laws the perps will often get off , only to get caught again .

 

[spat]

I like the legal truth. Are we a nation of laws, or are we a nation of gray areas and feelings?

What we *should* be and what we are are as far apart as you can imagine.

 

[Cooolone]

Problem:

New York generally requires someone to retreat before using deadly force when that can be done safely. However, state law removes that obligation under certain circumstances inside a person’s dwelling.

Fucking NY libertards constantly putting law abiding citizens at the disadvantage of the criminal element! Even here... The PROBLEM was being two sides to the story, if discharging your firearm at a home intruder, I wouldn't advise aiming to injure or maim! Now, this POS even if receiving any conviction, will have a hard on for this home, family, etc!

Duty to Retreat... Yeah, not when you fucking fear for your life! FUCK NY!!!

 

[Parzival]

Having just recently finished serving on a Grand Jury indictment panel for the last 6 weeks, sitting through hours of testimony in 30 Different cases I can tell you first hand that the DA’s will only charge the perps with the charges that they know they have the best chance of making stick and getting a jury to convict. Lesser charges are often tossed in favor of focusing on the stronger charges.
Even then they will flat out tell you frustratingly that with the new bail reform laws the perps will often get off , only to get caught again .

The other day I watched a guy with 17 true billed indictments plead to 1 charge. Now, he got 10 years as part of the plea but he should have got more time.

 

[Saltwater60]

Problem:

New York generally requires someone to retreat before using deadly force when that can be done safely. However, state law removes that obligation under certain circumstances inside a person’s dwelling.

Fucking NY libertards constantly putting law abiding citizens at the disadvantage of the criminal element! Even here... The PROBLEM was being two sides to the story, if discharging your firearm at a home intruder, I wouldn't advise aiming to injure or maim! Now, this POS even if receiving any conviction, will have a hard on for this home, family, etc!

Duty to Retreat... Yeah, not when you fucking fear for your life! FUCK NY!!!

Inside your home you are expert from this. Article 35 for burglary says if it’s an occupied dwelling deadly physical force is allowed and there is nothing that says a duty to retreat in that section of article 35.

 

[C3D]

Someone should really point to the actual law, which is Penal Code Section 140. The article is incorrect insofar as it states entering through an unlocked door is not Burglary under NY Penal Law. More likely because the perp entered and only shouted erratically, the perp could not be shown to have an intent to commit a crime in the house after entering (which is burglary).

Note this distinction has a very important difference under Article 35 of the Penal Law. Under PL s 35.20.3, a homeowner can shoot a burglar to stop a burglary even if the homeowner is not in fear of his life. Since no burglary was being committed in this case, the shooting can only be justified under PL s 35.15.2, which requires the shooter "reasonably believes that [the perp] is using or about to use deadly physical force." This is an additional element vs. s 35.20.3 that must be demonstrated to have the shooting be justified.

And the article is clear that no charge have been brought against the shooter . . . yet.

 

[fresch]

Dead men tell no tales.

 

[Nighttrain]

No one is walking through the door

 

[S&W Fan]

The other day I watched a guy with 17 true billed indictments plead to 1 charge. Now, he got 10 years as part of the plea but he should have got more time.

And That right there is the problem, plea deals. Of All the cases that I sat through we only no billed one case.

 

[Robin]

I remember hearing a judge saying if it weren't for the plea deal system the courts could not keep abreast of all the cases and the right to a speedy trial wouldn't exist in practical terms. There would be a total collapse.
Robin

 

[Saltwater60]

Someone should really point to the actual law, which is Penal Code Section 140. The article is incorrect insofar as it states entering through an unlocked door is not Burglary under NY Penal Law. More likely because the perp entered and only shouted erratically, the perp could not be shown to have an intent to commit a crime in the house after entering (which is burglary).

Note this distinction has a very important difference under Article 35 of the Penal Law. Under PL s 35.20.3, a homeowner can shoot a burglar to stop a burglary even if the homeowner is not in fear of his life. Since no burglary was being committed in this case, the shooting can only be justified under PL s 35.15.2, which requires the shooter "reasonably believes that [the perp] is using or about to use deadly physical force." This is an additional element vs. s 35.20.3 that must be demonstrated to have the shooting be justified.

And the article is clear that no charge have been brought against the shooter . . . yet.

I agree with everything you said here. That’s why I pointed out that it wasn’t considered a burglary as I was surprised.
I’m not sure I agree with the jump on how you the shooting was justified. To anyone’s mind at the onset of that interaction it is a burglary.

I appreciate you brining up the part about no duty to retreat inside an occupied dwelling. I’ve been having this conversation with many and people do not understand this and think you have to retreat inside your own home.

 

[Saltwater60]

I remember hearing a judge saying if it weren't for the plea deal system the courts could not keep abreast of all the cases and the right to a speedy trial wouldn't exist in practical terms. There would be a total collapse.
Robin

At the current rate of judges and how the system is handled yes, but in my opinion a lot is mishandled in our current system. Civil cases should be previewed to make sure there is a legal standing to sue before going to court. To much is wasted on things like this. Repeat offenders should be given longer term sentences and all the plea deals keep bad people on the streets. These repeat offenders then come back and clog up the system. I just saw a convicted child rapist got 18 months. He will be back. If they have him 30 years or cut off his balls he wouldn’t be back.

 

[spat]

Someone should really point to the actual law, which is Penal Code Section 140. The article is incorrect insofar as it states entering through an unlocked door is not Burglary under NY Penal Law. More likely because the perp entered and only shouted erratically, the perp could not be shown to have an intent to commit a crime in the house after entering (which is burglary).

Note this distinction has a very important difference under Article 35 of the Penal Law. Under PL s 35.20.3, a homeowner can shoot a burglar to stop a burglary even if the homeowner is not in fear of his life. Since no burglary was being committed in this case, the shooting can only be justified under PL s 35.15.2, which requires the shooter "reasonably believes that [the perp] is using or about to use deadly physical force." This is an additional element vs. s 35.20.3 that must be demonstrated to have the shooting be justified.

And the article is clear that no charge have been brought against the shooter . . . yet.

But, the homeowner only needs a *reasonable belief* that a burglary is in progress.

So, his lawyer just needs to convince the jury (or DA) that a reasonable person would believe that the guy he shot intended to commit a crime. Which is a far lesser standard than would be required to actually convict the guy of burglary.

 

[fresch]

Follow the logic.
You are found in a bank after it was closed. Would you be arrested and for what?
You are found in a house after it was closed.

 

[Saltwater60]

But, the homeowner only needs a *reasonable belief* that a burglary is in progress.

So, his lawyer just needs to convince the jury (or DA) that a reasonable person would believe that the guy he shot intended to commit a crime. Which is a far lesser standard than would be required to actually convict the guy of burglary.

Correct. Here is the AI summary for burglary in NY. It’s essentially entering a dwelling that is occupied with the intent to commit a crime, any crime. First, just being there is a crime, but he clearly attempted to fight the people allowed to be in the home. Therefore he was guilty of burglary.
I pointed this out in the original post because I was surprised he wasn’t charged with burglary, but I wonder if burglary has a bail standard. First and second degree burglary are violent felony charges and could require bail.
I’m going to guess the burglary charge was not pursued because they do not want burglaries on records and reportable to the FBI. Now we all know how these crime stats have been shown to be decreasing. No one cares or looks at trespassing charges for crime stats, but burglaries they do.

 

[C3D]

But, the homeowner only needs a *reasonable belief* that a burglary is in progress.

So, his lawyer just needs to convince the jury (or DA) that a reasonable person would believe that the guy he shot intended to commit a crime. Which is a far lesser standard than would be required to actually convict the guy of burglary.

I didn’t want to go down the rabbit hole, but we’re there. Yes we can thank Bernie Goetz for that standard in fact, it’s from his case.

But the presence of an intruder in your house by itself does not necessarily constitute facts upon which a reasonable belief a burglary is occurring can be drawn. For the reason stated: unjustified presence is only one of two elements of the crime, and you need a basis to believe the second element is occurring too. Your Article 35 defense will be from the other provisions on fear of death or serious bodily harm.

 

[Saltwater60]

I didn’t want to go down the rabbit hole, but we’re there. Yes we can thank Bernie Goetz for that standard in fact, it’s from his case.

But the presence of an intruder in your house by itself does not necessarily constitute facts upon which a reasonable belief a burglary is occurring can be drawn. For the reason stated: unjustified presence is only one of two elements of the crime, and you need a basis to believe the second element is occurring too. Your Article 35 defense will be from the other provisions on fear of death or serious bodily harm.

Any reasonable person would think someone would lawfully entering your home isn’t there for anything outside of criminal activity.
I remember about 10 or so years ago a teacher was so drunk they went into the wrong house in Amherst, NY. Homeowner said leave or I’ll shoot you I’m armed. Dude kept clanking around making himself a sandwich. Homeowner shot and I believe killed him. No charges.
My plan if I’m able to and no one is occupying my first floor is to say leave, if you come upstairs I shoot. If anyone is on the first floor if they enter my home it’s a threat of violence and theft, all bets are off.
Keep in mind article 35 says deadly physical force is justified if the dwelling owner believes a burglary is happening or an attempted burglary is being committed.

Justification; use of physical force in defense of premises and in defense of a person in the course of burglary

www.nysenate.gov

 

[spat]

I didn’t want to go down the rabbit hole, but we’re there. Yes we can thank Bernie Goetz for that standard in fact, it’s from his case.

But the presence of an intruder in your house by itself does not necessarily constitute facts upon which a reasonable belief a burglary is occurring can be drawn. For the reason stated: unjustified presence is only one of two elements of the crime, and you need a basis to believe the second element is occurring too. Your Article 35 defense will be from the other provisions on fear of death or serious bodily harm.

Yes. But you just need a reasonable suspicion he is there to commit a crime.

You do not need "beyond a reasonable doubt".

And police have managed to stretch "reasonable articulable suspicion" into a very broad set of circumstances.

 

[FP1201]

I like the legal truth. Are we a nation of laws, or are we a nation of gray areas and feelings?

It's New York and you haven't figured this out yet?
Apparently from the article, the SP and/or DA didn't feel it met the definitions (we know how clear and unambiguous statutes are)

 

[fresch]

It also depends on who is being investigated and who is investigating.

 

[C3D]

Yes. But you just need a reasonable suspicion he is there to commit a crime.

You do not need "beyond a reasonable doubt".

And police have managed to stretch "reasonable articulable suspicion" into a very broad set of circumstances.

The shooter needs to believe a burglary is in progress, and that belief must be objectively reasonable. Very different than a reasonable suspiscion standard.

I do not expect any grace or benefit of the doubt in most of NY’s 62 counties, and even if your county is one of the few good ones you can bet Letitia James will step in if the person shot is black or transexual.

 

[spat]

The shooter needs to believe a burglary is in progress, and that belief must be objectively reasonable. Very different than a reasonable suspiscion standard.

I do not expect any grace or benefit of the doubt in most of NY’s 62 counties, and even if your county is one of the few good ones you can bet Letitia James will step in if the person shot is black or transexual.

That sounds exactly like a reasonable suspicion standard.

The homeowner needs a reasonable belief that a crime is in progress. That's exactly what reasonable suspicion is.

 

[fresch]

See post #21.
If you are found by police and do not follow orders you will be putting your life on the line.
Why would it be different for a non-professional in their home; other than the totalitarians trying to take over.
We went from hanging horse thieves to understanding and giving aid to thieves who steal the iron horse in your driveway.
Shoot them all.