
    The People of the State of New York, Respondent, v Herbert E. Mackey, Appellant.
    Argued December 10,1979;
    decided January 10, 1980
    
      POINTS OF COUNSEL
    
      Stephen R. Mahler for appellant.
    I. Where an indictment count is drafted strictly in the language of a statute, the denial of a bill of particulars as to a material element of the crime which it charges amounts to reversible error. (People v Iannone, 45 NY2d 589; People v Fitzgerald, 45 NY2d 574; People v Bogdanoff, 254 NY 16; People v Smith, 90 Misc 2d 495; People v Bneses, 91 Misc 2d 625; People v Taylor, 43 AD2d 519; People v Thomas J. S, 61 AD2d 1018; People v Rivera, 56 AD2d 701; People v Delorio, 33 AD2d 350; People v Pierce, 40 AD2d 581.) II. It was an abuse of discretion for both the Special Term to initially deny defendant’s Sandoval application and the trial court to refuse to review such prior determination during the trial. (People v Sandoval, 34 NY2d 371; People v Yost, 50 AD2d 577; People v Carmack, 52 AD2d 264; People v Dickman, 42 NY2d 294; People v Shields, 58 AD2d 94; People v Mayrant, 43 NY2d 236; People v Solomon, 91 Misc 2d 760.)
    
      John J. Santucci, District Attorney (William Schrager of counsel), for respondent.
    I. The court below did not abuse its discretion in denying appellant’s request for a bill of particulars alleging the specific crimes which he intended to commit at the time he unlawfully entered complainant’s residence. (People v Spina, 14 AD2d 505; People v Smalley, 64 Misc 2d 363; People v Flinn, 146 Misc 423; People v Noblett, 244 NY 355; People v Gilligan, 42 NY2d 969; People v Rodriquez, 39 NY2d 976; People v Lynch, 23 NY2d 262; People v Utley, 45 NY2d 908; People v Robinson, 36 NY2d 224.) II. The court below did not abuse its discretion as a matter of law in permitting the People to cross-examine appellant as to his prior criminal record. Furthermore the proof of appellant’s guilt was overwhelming, thereby rendering any conceivable error in this respect harmless. (People v Duffy, 36 NY2d 258, 423 US 861; People v Sorge, 301 NY 198; La Beau v People, 34 NY 222; People v Sandoval, 34 NY2d 371; People v Greer, 42 NY2d 170; People v Reed, 56 AD2d 896; People v Lee, 55 AD2d 658; People v Cole, 54 AD2d 643; People v Warner, 52 AD2d 684; People v Williams, 53 AD2d 999.)
   OPINION OF THE COURT

Meyer, J.

Presented by this appeal are questions concerning the right to a bill of particulars with respect to a charge of burglary and of whether Sandoval rulings by both the pretrial Judge and the Trial Judge improperly denied defendant the possibility of testifying in his own behalf. For the reasons set forth below, we conclude that neither the denial of the particulars motion nor the several Sandoval rulings constituted an abuse of discretion. The order of the Appellate Division should, therefore, be affirmed.

Defendant was indicted and charged with rape in the first degree and burglary in the second degree. The burglary count accused defendant of "knowingly entering and unlawfully remaining in the dwelling of [complainant] with intent to commit a crime therein”, but did not specify the crime he was accused of intending to commit. Defendant made an omnibus motion (1) to dismiss the indictment, (2) for a bill of particulars, and (3) under Sandoval to preclude the People from using his prior convictions to impeach his credibility. The court denied the Sandoval relief in its entirety, denied the motion to dismiss the indictment, and denied that portion of the motion for a bill of particulars which requested that the People specify which crime defendant intended to commit within the building.

The prior convictions to which the Sandoval motion was addressed were for disorderly conduct (1963), for petit larceny (1963), for attempted felonious possession of drugs (1967), for robbery in the second degree (1971), and for criminal trespass (1975). The motion was repeated to the Trial Judge at the beginning of the trial, at the end of the People’s case and at the end of defendant’s case. The Trial Judge denied all three applications, however, on the ground that he could not overrule the pretrial Judge, a Judge of co-ordinate jurisdiction.

The fact setting in which these issues arise is sufficiently indicated by the following summary of the relevant testimony: Complainant was awakened at about 1:30 a.m. in her bedroom by a man who, she testified, was a stranger to her and who had no authority from her to enter her house. After the man left she found a window open in one of the other rooms. A textbook, pamphlet, registration and receipt card with defendant’s name on it and a schedule of classes for City College, which defendant attended, were found 10 to 12 feet from complainant’s house. Defendant identified the books, card and schedule as his. A storm window screen had been removed from a window of the house and was propped against the side of the house about three feet from the window. The window faced an alleyway between complainant’s house and the adjacent building, was in a poorly lighted area and was surrounded by shrubbery. When apprehended a short distance from the house defendant first stated "I live here” but then stated "Well, I don’t live here. I used to live here. I’m visiting friends.” The house was a two-family house in which the complainant’s sister had previously resided in the apartment which at the time of the incident was occupied by complainant and in which house two other sisters resided as tenants in the basement apartment. The tenant sisters and a man friend of theirs all testified that complainant had been present with defendant on a number of occasions, that the house was like "open house” to the two men who were friendly with both sets of sisters. Complainant’s sister testified that she had moved out of the house about three months prior to the incident and admitted that she had socialized with the tenant sisters and the men, but swore that though defendant had been present in the house while complainant lived there, defendant and complainant were never in each other’s presence.

I

Defendant’s motion for particulars as to the burglary count requested "that The People be required to inform [the defense] as to the specific crime which it will allege that the defendant intended to commit inside of the complainant’s premises”. He relies upon our holdings in People v Iannone (45 NY2d 589) and People v Fitzgerald (45 NY2d 574) as supporting his contention that denial of the requested particulars was an abuse of discretion to such a degree as to amount to reversible error. That reliance is misplaced.

Iannone and Fitzgerald held that indictments which stated no more than the bare elements of the crimes charged and in effect parroted the statute were sufficient, while noting that the defendants could discover the particulars of the crimes by requesting a bill of particulars. But the particulars to which a defendant indicted by such a document is entitled are the particulars of the crime charged, here burglary in the second degree, which requires only a knowing entry "with intent to commit a crime therein” (Penal Law, § 140.25; emphasis supplied). The predecessor sections of the Penal Law of 1909 were phrased in terms of "some crime” (§§ 402, 403), "a crime” (§ 404) and "any crime” (§ 406) and we are told by Professor Arnold Hechtman’s Practice Commentary (McKinney’s Cons Laws of NY, Book 39, Penal Law, § 140.20, p 37) that "Similarly the Revised Penal Law’s definition of burglary is satisfied if the intruder’s intent, existing at the time of the unlawful entry or remaining, is to commit any crime.”

Thus, to secure a conviction for burglary the State "need not establish what particular crime the intruder intended to commit” (Hechtman, loc. tit), nor is it necessary that the intended crime in fact be committed (id.). Nor is there any unfairness to a defendant in so holding, for as we pointed out in Iannone 45 NY2d, at p 598): "[T]he need to utilize the indictment as the means of resolving any double jeopardy inquiry has been considerably alleviated by the modern practice of maintaining full records of criminal proceedings which may be considered by subsequent courts. Similarly, the function of the indictment as the vehicle for assuring that the crime for which the defendant is tried is the one for which he was indicted by the Grand Jury is of less significance due to the practicability of using sources extraneous to the indictment should a challenge be made on those grounds (see CPL 210.30).”

The reason for the rule is pragmatic: intent is subjective, and must be established by proof of defendant’s conduct and other facts and circumstances (see McCourt v People, 64 NY 583, 586; People v Oliver, 4 AD2d 28, 31, affd 3 NY2d 684). If the State must prove an intent to commit a particular crime as distinct from the general intent to commit crime, the trial of a burglary indictment becomes an exercise in hairsplitting similar to that which, prior to 1942, engulfed the Penal Law’s larceny article in a sea of technicalities (see, e.g., People v Noblett, 244 NY 355; and Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 155.05, p 113).

Had the Legislature intended the result for which defendant argues it could easily in revising the Penal Law have inserted the word "specified” or the word "particular” between "a” and "crime”. It did not do so and the dissent points to nothing in the legislative history of the present provisions or in our prior holdings that requires such a result, relying instead on decision of Federal and State courts construing the statutes of other States. We have not in the past and do not now find those decisions persuasive.

Thus, in People v Gilligan (42 NY2d 969) we made clear that the People need prove only that defendant intended to commit a crime during his illegal presence in the building, for we there held that defendant’s intent to commit a crime on entering the building "could be inferred beyond a reasonable doubt from the circumstances of the breaking”. Similarly, People v Henderson (41 NY2d 233), citing People v Terry (43 AD2d 875), recognized that the intent necessary for burglary can be inferred from the circumstances of the entry itself. The out-of-State cases on which the dissent relies proceed from the premise that the burglary statute "is a proscription on entry of a dwelling with any one or more of a certain category of specific intents and not merely a proscription against entry with a generally evil or criminal intent” (United States v Thomas, 444 F2d 919, 921). If that premise be accepted, it follows that intent to commit a specific crime being an element of the offense, a due process problem might exist if the specific crime is not particularized. But unless there is read into the words "a crime” more than the Legislature has stated, intent to commit a specific crime is not an element, and the necessity for particulars, and with it the due process question, disappears.

The fallacy involved in the contrary view is pointed up by the suggestion of the dissent that "in the absence of indicia of a different criminal intent”, larceny may be specified as the intended crime (p 284). The cases cited in support of that proposition do clearly so hold, but they also make clear that the jury may infer from the circumstances of the entry if not explained to their satisfaction that larceny was intended (United States v Thomas, 444 F2d, at p 924, supra; State v Woodruff, 208 Iowa 236, 243; Commonwealth v Ronchetti, 333 Mass 78, 81) and that the rationale behind the rule is that the usual object of burglary is theft and that unless a presumption of larceny is indulged "the burglar caught without booty might escape the penalties of the law” (State v Woodruff, 208 Iowa, at pp 239-240, supra; United States v Thomas, 444 F2d, at p 924, supra). To hold that a specific not a general intent is required, but allow the specific intent to be proved by inferring it from the same evidence that would prove the general intent, is simply to indulge in circular reasoning.

Had defendant’s motion for particulars demanded the basis upon which the People would contend that he intended to commit a crime its denial may have been error (CPL 200.90). But the demand as framed asked only for information that was not a necessary element of burglary — the specific crime that defendant intended to commit — and its denial, therefore, was not an abuse of discretion. Moreover, there not only was clear evidence from which the jury could infer general intent to commit a crime, but it also is clear that defendant’s trial strategy was in no way affected. Defendant took no exception to the failure to charge intent to commit a specific crime; he did, however, consistent with his strategy of showing prior association, permission to enter and inferentially consent to intercourse, make a number of requests for a charge that the People had to prove beyond reasonable doubt that he had no license or privilege to enter complainant’s dwelling. There is, therefore, no basis for reversal in defendant’s first point.

II

Defendant argues that he was prejudiced by the rulings on his Sandoval motions by not being able to testify in a situation in which it was essentially the complainant’s word against his. He suggests that at the very least it was error to deny the motion at the end of his case after he had presented witnesses to establish that he and complainant, who denied ever having seen him before, had been present together at parties in the same house in which she lived.

In view of the nature of the offense and its age it would not have been error to suppress the disorderly conduct conviction, nor, though petit larceny is more closely related to veracity than disorderly conduct, to suppress the petit larceny charge. Both occurred when defendant was 13 years old. However, as we have made clear in People v Shields (46 NY2d 764, 765), "the exclusion of prior convictions is largely, if not completely, a matter of discretion which rests with the trial courts and fact-reviewing intermediate appellate courts” (see People v Duffy, 36 NY2d 258, 263, cert den 423 US 861). We cannot say that the ruling of the pretrial Judge or that of the Trial Judge denying the motion made just prior to trial constituted the clear abuse of discretion that would make it reversible error.

Nor can we say that the denial of the motions during trial were such an abuse. Though our Sandoval ruling permits motions both before and during trial when circumstances warrant, and it may be argued that the Trial Judge, therefore, denied the last two motions in too summary a fashion, it was under Sandoval defendant’s burden to demonstrate that the prejudicial effect of admission so far outweighed the probative worth of the evidence as to warrant its exclusion. The motions as made sought exclusion of the 1967, 1971 and 1975 convictions, counsel stating that he assumed that those from 1963 would not be used, and the only reason advanced for renewal was, as to the first that defendant’s case was about to begin, and as to the second that defendant’s two witnesses had testified. Under these circumstances, adherence to the ruling of the pretrial Judge is not such an exercise of discretion as, after affirmance by the Appellate Division, warrants reversal.

Accordingly, the order of the Appellate Division should be affirmed.

Fuchsberg, J.

(dissenting in part). I cannot join in the conclusion that a prosecutor need not comply with a request to furnish a bill of particulars when an indictment charging burglary does not itself particularize the crime which defendant allegedly intended to commit inside the building. Such holding is mandated neither by statute nor decisional law. Rather, I suggest it runs counter to fundamental principles of notice and fair play.

The majority interprets the statutory words "with intent to commit a crime” (Penal Law, § 140.25) as meaning that a burglar need possess only "the general intent to commit a crime.” I find the holding too conclusory by far, given that, on its face, the statute’s ambiguous phrase may be read as requiring either an intent to commit a crime in particular or, alternatively, a general intent to commit some act that would constitute a crime. To the resolution of this problem, the majority cites a commentator who simply reiterates the statute’s language and, without analysis, construes it to mean that the prosecutor " 'need not establish what particular crime the intruder intended to commit’ ” (p 279). Furthermore, the majority’s reliance on our brief memorandum in People v Gilligan (42 NY2d 969) as dispositive of this issue is misplaced inasmuch as that decision merely held that an intent to commit a crime could be inferred beyond a reasonable doubt from the circumstances of a breaking. By no means did it reach the question here, i.e., whether those circumstances had to be directed to the intent to commit a particular crime. To decide this issue on no more basis than this paucity of authority seems to me to minimize the importance of the problem.

In contrast, confronted with the precise question in the context of similarly worded burglary statutes, most courts have held indictments themselves insufficient for failure to specify the particular crime intended upon entry (see, e.g., United States v Thomas, 444 F2d 919, 922 [DC Cir]; Henson v People, 166 Col 428; State v Tippett, 270 NC 588; Taylor v Commonwealth, 207 Va 326; Adkins v State, 389 P2d 915 [Alaska]; State v Deedon, 56 Del 49; Bays v State, 240 Ind 37; Lowe v State, 163 Tex Cr Rep 578; Brumñeld v State, 206 Miss 506; People v Westerberg, 274 Mich 647; Hooks v State, 154 Tenn 43; People v Schiaffino, 73 Cal App 357; State v Doran, 99 Me 329; see, generally, 13 Am Jur 2d, Burglary, § 36, p 341).

Certainly, a rule requiring specificity is more consistent with modern pleading and discovery tenets. The view of a criminal trial as a game in which information may be disclosed or not as partisan strategy dictates has long ago been rejected in favor of disclosure of such information as may be necessary and useful in the preparation of the defense.

It is therefore regrettable that by a literal and hypertechnical construction of the burglary statute, the decision today sanctions the withholding from the defendant of a material element of the offense until the commencement of a trial or longer. The short and long of it is that the risk that a defendant may be unfairly surprised and, hence, rendered unable to effectively meet the prosecutor’s theory of the case is dramatically increased. (Cf. People v Thomas J. S., 61 AD2d 1018; People v Rivera, 56 AD2d 701; People v Taylor, 43 AD2d 519.) To take an example, a vagrant whose defense to a burglary charge is built around a claim that he entered a house meaning only to warm himself will surely suffer prejudice if the prosecutor, without prior notice, is permitted at trial to unexpectedly introduce proof that the ulterior crime was not larceny, but, say, arson.

Moreover, even before a trial ever commences, failure to require particularity may result in the Grand Jury returning an indictment with one object crime in mind while the prosecutor proceeds to try the case on evidence of a completely different one. The "looseness” that may thus ensue between the accusatory instrument and the proof at trial may carry serious double jeopardy ramifications. More readily apparent are the implications in terms of due process which may result from inadequate notice of the charges, a problem I thought had been obviated by our recent decisions in People v Iannone (45 NY2d 589) and People v Fitzgerald (45 NY2d 574), which conditioned the sufficiency of broadly drawn indictments upon the availability of a bill of particulars.

Against all this, the prosecutor contends that forcing him to reveal the underlying criminal intent "would allow burglars to slip unnecessarily through the fingers of the law by the simple expedient of contending that they intended to commit a crime different than that alleged.” But, granted the difficulty in designating the offense which an accused intended to commit upon entry where the ulterior crime remains unconsummated, elementary principles of fairness need not be abandoned. For, in such cases, where the investigation and theory of the prosecution embraces more than a single object offense, or alternate ones, the indictment may permissibly allege that the defendant intended to commit one or more crimes (United States v Thomas, 444 F2d 919, 922, supra). And, where an indictment, by tracking statutory language, fails to designate them, the information should be available on demand. Moreover, where the evidence of the ulterior crime may be indefinite, the circumstances of the breaking and entry will generally suffice to support, though not to compel, an inference that larceny was intended and, in the absence of indicia of a different criminal intent, may be so specified (State v Woodruff, 208 Iowa 236; Commonwealth v Ronchetti, 333 Mass 78).

In sum, where, as in People v Iannone (supra, at p 599), People v Fitzgerald (supra, at pp 579-580), or in the present case, an indictment merely parrots the general wording of a statute or is otherwise inadequately or opaquely drawn, the bill of particulars is elevated to a position of special importance and a defendant’s request therefor may not be lightly allowed to be refused.

Here, not only did the defendant make a timely request for a bill of particulars, he explicitly sought to be informed "as to the specific crime which [the People] will allege that the defendant intended to commit inside of the complainant’s premises”, a demand of which any reasonable reading would have taken to include all such crimes if the prosecution believed there was more than one. Without specification as to the ulterior crime or crimes it was his intent to commit upon entry, the defendant, as the majority’s factual recital itself points up, apparently assumed from the rape charge in the indictment that the People would proceed upon the theory that he had an intent to commit rape and, accordingly, he directed his attention to showing that he had no such motive; though found to have engaged in coercive conduct, he succeeded in this goal as indicated by his acquittal on the far more serious charge of rape, offering his own testimony and other proofs of his prior relationship with the occupants of the house for that purpose. Having failed to even sustain the rape charge, which they did not claim was an object of the breaking, the People now belatedly fall back on the theory that defendant was possessed of larcenous intent. Not surprisingly, the trial court, somewhat confused, alternatively instructed the jury that the intent underlying the burglary was an intent to rape or to commit some other undefined crime. In the end, what this all added up to is that the denial of the bill of particulars resulted in the omission of an element critical to the preparation of the defense to the burglary charge. As a consequence, the defendant, instead of being fairly informed of the specific charge against him, was visited impermissibly, I believe, with the prosecution of a criminal charge whose basis in significant part was mired in mystery.

Accordingly, while the evidence might well have sustained the lesser included charge of criminal trespass (Penal Law, § 140.15), the conviction for second degree burglary should be overturned. I would therefore modify the order by affirming the conviction for coercion and otherwise reversing.

Chief Judge Cooke and Judges Gabrielli, Jones and Wachtler concur with Judge Meyer; Judge Fuchsberg dissents in part and votes to modify in a separate opinion in which Judge Jasen concurs.

Order affirmed. 
      
      . (People v Sandoval, 34 NY2d 371.)
     
      
      . Removal of a screen from a window located along the darkened alleyway between the houses and concealed by shrubs.
     
      
      . His acquittal of the charge of rape does not indicate otherwise, as the dissent suggests, for he was convicted of the lesser included offense of coercion in the second degree. Thus, the jury found compulsion not consent (see Penal Law, § 135.60). By its burglary conviction it also found that defendant entered without leave for the purpose of committing a crime, which is all the Penal Law requires.
     