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You have asked me to determine whether the Bottle area attached to Grand
Supermarket in Stanville, New York is a “building” as defined by the N.Y. Penal Law
§ 140.00(2) (McKinney 2010). The affirmative answer to this question would subject
Mr. Fox to a conviction of Burglary in the third degree. A person is guilty of burglary
in the third degree when he knowingly enters or remains unlawfully in a building
with intent to commit a crime therein. N.Y. Penal Law § 140.20 (McKinney 2010).
The relevant cases on the topic vary in their description of a “building” from
vestibules and trailers to makeshift studios and fenced-in storage areas, none of
which can be compared to the bottle area in Mr. Fox’s case. Although the relevant
cases on the topic do not set a precedent on this particular structure, analysis of
structures in previous cases compared to the structure in Mr. Fox’s case has led me
to believe that the strongest argument against Mr. Fox is that he entered a structure
“…used by persons for carrying on business therein…” § 140.00(2) (definition of
“building”).
While the factor of the bottle area being used for business is strong, other
factors can be argued to be equally as strong, including, “…its ordinary meaning...”
Id, as defined by the courts. This determination was difficult to make. However,
siding with caution, I feel the argument the prosecution would have in defining the
bottle area as a “building” is stronger than it not being so. Where a structure has been
determined to not specifically carry out “business” within its boundaries, an

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evaluation of its physical characteristics are used to determine if it is a “building”
within “…its ordinary meaning…” Id.
The Court has ruled consistently that the existence of a roof is a strong
indication that the structure is a building within its ordinary meaning. A case that
decided defendant was not guilty of burglary in the third degree, In re Orneil F., 824
N.Y.S.2d 292, 293 (N.Y. App. Div. 1st Dep’t. 2006), ruled that “There was no evidence
to support a conclusion that this storage lot resembled, or was analogous to, the roofed
vestibule or entranceway described in People v. King, 463 N.E.2d 601 (N.Y. 1984)”.
The structure in Mr. Fox’s case included by all definitions a roof since it was an
overhang permanently affixed to the wall of the store, constructed of tile and wood,
that protected customers and machinery from inclement weather. The type of
structure most analogous to the description of the bottle area is a Lean-to, a small
and usually roughly made building that is built on the side of a larger building.
"Lean-to" Merriam-Webster.com. Merriam-Webster, 2016. Web. 5 October 2016.
When a roof is not physically connected to the walls of the structure, as in Mr. Fox’s
case, again, the absence of such characteristic excluded defendant from conviction of
third-degree burglary; “…was made of partitions that did not reach the ceiling (and,
in fact, were capable of being seen over). People v. Watson, 558 N.Y.S.2d 537, 539
(N.Y. App. Div. 1st Dep’t. 1990). This is distinguished from Mr. Fox’s case since the
two corrugated sheets of metal that made up the left and right sides of the structure
extended continuously from the ground to the overhang.

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A structure does not have to be physically indistinguishable from the main
building to be regarded as such, so long as the structure can be deemed a building in
itself. The statute provides that, “in addition to its ordinary meaning, [a ‘building’]
includes any structure … used by persons for carrying on business therein. Where a
building consists of two or more units separately secured or occupied, each unit shall
be deemed both a separate building in itself and a part of the main building.”
§ 140.00(2). Although a vestibule area at the entrance of a building was enclosed by
walls on three sides and a roof, it could not satisfy the legal definition of building
until a security gate was lowered and locked, making the vestibule indistinguishable
from the display cases adjacent to it. King, 463 N.E.2d at 603. The reason why the
addition of a security gate enclosing the vestibule area is needed in King while it
would not be needed in Mr. Fox’s case is that the vestibule area did not have the
purpose of carrying on business therein. The bottling area in Mr. Fox’s case would be
considered an area where carrying on business did take place therein. Analysis of
that factor will be discussed in the following paragraph. The vestibule, although
lacking evidence of any business done within its boundaries, automatically became
part of the building around it where business did take place when it was enclosed by
the security gate, thus satisfying the legal definition of a building. Arguments could
be made against the bottle area being a building as described in King, by attacking
whether or not the lack of a fourth wall would prevent the bottle area from being
described as “building.” The four-foot-high metal railing and locked chain that made
up the facade of the bottle area is clearly not as secure as a security gate or door;

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however, the purpose of such was to prevent anyone from entering the area. The area
was locked daily at closing every night at 9 pm by a store employee. If it were the
intention of the store to allow people to use the machines after closing, they would
have probably left the chain unlocked. The open design of the bottle area is most
likely to allow customers to feel less confined while in the relatively small structure.
If any structure is used for carrying on business therein, then it will be
determined to be building in addition to its ordinary meaning.
As part of [store's] business, its employees would stock trailers on its property
with merchandise, and transfer items therefrom to [store] on daily basis;
following sale of larger items, customers were instructed to drive to trailers
for direct pickup; these facts demonstrate that storage trailers, particularly
one at issue, constitute “buildings” within meaning of Penal Law.
People v. Wandell, 728 N.Y.S.2d 578, 579 (App. Div. 1st Dep’t. 2001)
Customers of Grand Supermarket deposit used bottles into machines enclosed in the
area, and in return would receive a receipt that could be redeemed inside the store
for money. The bottles, although nominal in value, still have value enough for people
to engage in this daily activity. The Supermarket in return sells the shredded plastic
material to a recycler.This situation is analogous to Wandell for both employees and
customers frequented the area for the purpose of conducting business within.
Little evidence is available to make arguments against the contention that Mr.
Fox entered a structure; which satisfied the definition of a “building” in its ordinary
meaning having possessed a roof and, as a structure where business was carried out
therein. To successfully attack the evidence against Mr. Fox you would have to

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convince the court of that the open façade and chain are distinguishable from the
security gate in King. However, this argument would fail because the bottle area does
not rely on the presence of a fourth wall to make the area distinguishable from the
supermarket as it did in King. A better argument would be to attack the nature of
the business that took place in the bottle are making it more akin to the fenced-in
storage area in Orneil than the trailers in Wandell. Again, however, this, in my
opinion, would be hard to argue considering the overwhelming evidence of business
activity that took place in the bottle area as distinguished from a mere storage
facility. The weight of the evidence, in this case, suggests the bottle area structure
attached to Grand Supermarket is a “building” as defined by the New York Penal
Law.