dissents in part in a memorandum as follows: I would reverse the conviction for second degree burglary.
The Court of Appeals stated, long ago, in Quinn v People (71 NY 561 [1878]), and recently reaffirmed the principle in People v McCray (23 NY3d 621 [2014]), that where part of a building with residences is “rented to different persons for purposes of trade or commerce,” that “part of a dwelling-house may be so severed from the rest of it” as to not qualify as a “dwelling” within the meaning of the burglary statute (Quinn, 71 NY at 573). The Court recognized that the purpose for the increased penalty for burglary of a dwelling is to prevent “midnight terror . . . [and the] danger to human life, growing out of the attempt to defend property from depredation” (id. at 567).
In McCray, the Court of Appeals reaffirmed the “common sense limitation on a literal reading of [the] statute” regarding dwellings, rejecting the prosecution’s argument for a strict, literal application of the statute that would have permitted no exceptions (23 NY3d at 628). The Court underscored that where a “crime is committed in a place so remote and inaccessible from the living quarters . . . the special dangers inherent in the burglary of a dwelling do not exist” (id. at 624).
In this case, the evidence showed that the basement was *441entirely sealed off and inaccessible from the residences above. As the trial court found, “there was no testimony that you could get to the apartments” internally from the basement of the delicatessen. Moreover, there was no testimony that a burglar could access any part of the building from the basement — it was entirely shut off and accessible only via the double doors to the public sidewalk. The basement was the quintessence of “inaccessible,” given that it was cut off from the building itself, and accessible only via the public sidewalk. Indeed, the delicatessen workers locked defendant into the vault-like basement while they called the police.
The majority agrees that the inaccessibility requirement has been met in this case, yet nonetheless affirms, reasoning that the Court of Appeals in McCray imposed an additional requirement that the building in question be “large” in order to constitute a dwelling.
In my view, there is no support for such an interpretation of “dwelling,” either in Quinn or in McCray itself. Quinn and McCray did not turn on this distinction; rather, the critical factor was whether there was close contiguity between the residential and nonresidential elements of the building. While a building’s size may inform the determination as to whether the residential elements were accessible, size per se is not a dispositive factor. The critical factor is whether “the people living in the apartments will even be conscious of [the burglar’s] presence”; if not, “[s]uch a burglar should be convicted only of third degree, not second degree, burglary” (McCray, 23 NY3d at 627). Notably, the Court’s analysis of whether the defendant in McCray committed second degree burglary by burglarizing a locker room and Madame Tussaud’s Wax Museum, both located within the same hotel complex, focused on the contiguity of those places to the floors containing the guest rooms. The burglary of the locker room easily qualified because the defendant entered and exited the locker room via stairwells which provided a means of reaching the guest floors of the hotel. The Court found that the burglary of the wax museum qualified, though “just barely,” because the jury could find that the defendant entered and exited the wax museum via the same stairwell, granting the burglar “ease of access” (23 NY3d at 630). Notably, the Court stated “we might well hold that a burglar who entered Madame Tussaud’s from the street, and never entered the stairwell it shared with the hotel, committed only third degree burglary” (id.).
While, as the majority notes, there was no internal communication between the ground-floor shop and the upper floor *442apartments in the building in Quinn, there was, however, an external staircase that permitted access to the upper floors. Here, the burglar was trapped inside a basement vault, which was not connected in any way, internally or externally, with the upper elements of the building. I believe this distinction is an important one in classifying this case within the exception outlined in McCray. I would also note that what constitutes a large building in today’s era is different from whatever would have been considered a large building in 1878, when Quinn was decided.
Consistent with the Court of Appeals’ admonition that a conviction for burglary of a dwelling is not authorized where “the burglar neither comes nor readily can come near to anyone’s living quarters” (McCray, 23 NY3d at 628), I would reverse. I would in any event urge the Court to clarify whether the size of the building is a necessary criterion in making the determination as to whether a building constitutes a “dwelling.”