New York Criminal Lawyer Blog
The Facts of the Case:
The appellant was charged with the criminal act of breaking and entering with intent to commit a misdemeanor, viz.: petit larceny. The information charged three elements: unlawful breaking, unlawful entry and the intent to commit petit larceny. The jury found appellant guilty of two of the three elements set forth in the accusatory pleading by finding that he had made an unlawful entry with intent to commit petit larceny or entering without breaking with intent to commit petit larceny. Clearly, the verdict found defendant guilty of a crime included within the offense charged by the accusatory pleading.
The Issue of the Case:
The sole issue for the court to resolve is whether one can be convicted of entering without breaking with intent to commit a misdemeanor on a charge of breaking and entering with the same intent.
The Ruling of the Court:
In the landmark case of Long v. State, the court’s ruling is predicated upon the principle that where an offense may be committed in various ways, the evidence must establish it to have been committed in the manner charged. In essence, it is a matter of due process; that an accused is entitled to know what he has to defend against. However, the court finds that it must be put in its proper perspective depending upon the statute involved. Under the Long statute, the first alternative is specific in its terms, i.e., the smuggling into a jail of a tool calculated to assist a prisoner in escaping; the second alternative is general, i.e., aiding, by any means whatsoever, a prisoner in his endeavors to escape. A specific charge made under the first alternative, then, would preclude a conviction under the second, absent evidence of the specific tool allegedly smuggled in, because as to the second there was no notice to the defendant that he would be tried under the broad and general provisions thereof. If it were the other way around, however, that is, if the defendant were charged with the second alternative, viz., aiding in the escape endeavors, he could not be heard to complain if the evidence established that he smuggled in a tool used in the escape. Thus, due process considerations clearly come into play under the Long statute depending upon which alternative is made out in the charge. However, in the landmark case of Skov v. State or simply the Skov statute, while there are also two ways to commit the same offense, the essence of the charge, to wit: the unlawful entering with the requisite intent, is common to each alternative. Thus, no due process considerations come into play when the charge is made out under the first alternative and the evidence establishes the second. The court held that such, like the conviction in the case at bar, cannot stand.
In other words, the pertinent statutes in both Long and Skov describe two ways in which the same offense can be committed. But there is a distinction between these statutes. Under the Skov statute every element necessary to convict under the second alternative is also among the same elements necessary to convict under the first; whereas, under the Long statute the elements of either one of the alternatives is not necessarily included among the elements required to convict under the other. There are circumstances under which a person might be convicted under the first alternative under the Long statute but not be guilty under the second, and there are circumstances where a person might be convicted under the second alternative of the Long statute but not be guilty under the first. While there are circumstances where a person could be convicted under the second alternative of the Skov statute and not be guilty under the first, there is no way that a person can be convicted of breaking and entering with intent to commit a misdemeanor and not also be guilty of entering without breaking with intent to commit a misdemeanor. The unlawful entry is the gravamen of the offense and that element is present in each alternative.
The court now overrules its decision in Skov, and two other cases.
Here, where one is charged with breaking and entering with intent to commit petit larceny, he is not deprived of due process by being convicted of entering without breaking with intent to commit petit larceny because the charge totally encompasses the manner by which the jury has determined the offense was committed. There is nothing that prevents the state from charging breaking and entering and entering without breaking in separate counts of the same information in a proper case so as to avoid the issue.
Accordingly, the judgment of conviction is affirmed. On other points raised by the appellant, the court finds them bereft of merit.
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