Issue: Is the Timberland Stamps store considered a “dwelling” under the N.Y. Penal Law during the time of Arthur Constable’s burglary?
Rule: “Dwelling” means a building which is usually occupied by a person lodging therein at night. N.Y. Penal Law § 140.00(3) (McKinney 1998)
Analysis: Mr. Timberline, the owner of the Timberland Stamps, does have a room set up in the back that has a kitchen, bath and sleeping ...view middle of the document...
Mr. Timberline himself stays in the back room on occasion. Not more than two times a month. In People v. Sheirod, 510 N.Y.S.2d 945, 948 (App. Div. 1987) The home was considered a “dwelling” since the homeowners intended on returning home after being gone for a year due to a work-related transfer. In People v. Ferguson, 727 N.Y.S.2d 790, 794 (App. Div. 2001) Even though the sorority house was vacant during the summer months it was still considered a “dwelling” because the members of the sorority would be returning when the school re-opened in the fall. However, a seven-story school building with beds in the upper-level offices that are used about twenty to thirty times a year for overnight stays by different visitors does not qualify as a “dwelling”. People v. Quattlebaum, 675 N.Y.S.2d 585, 586 (1998).
Conclusion: Comparing the information provided about the backroom in the Timberland Stamps store to the Sheirod and Ferguson case, it does not seem that the store is considered a “dwelling”. It is in more comparison with the Quattlebaum case and the court will most likely rule that at the time of the crime the Timberland Stamps store was not a “dwelling”.