Opinion
January 5, 1993
Appeal from the Supreme Court, New York County (Nicholas Figueroa, J.).
Defendant was apprehended by a security guard after he left a hotel area which had signs of forced entry. Defendant was carrying numerous hotel tablecloths, a screwdriver, and a nut pick.
Viewing the evidence in a light most favorable to the People, under the standards set forth in People v. Bleakley ( 69 N.Y.2d 490, 495), defendant's guilt was proved beyond a reasonable doubt by overwhelming evidence.
Defendant's contention that there was insufficient evidence to sustain a finding that he was guilty of burglary in the second degree, since the part of the hotel building he entered was not used for residential purposes is without merit (see, Penal Law § 140.00; People v. Johnson, 162 A.D.2d 267, lv denied 76 N.Y.2d 894).
Viewing the evidence in a light most favorable to defendant, there is no reasonable view of the evidence which would support a factual finding that defendant committed a burglary, but that the premises were not a dwelling under Penal Law § 140.00 (2) and (3). Nor was there any reasonable view of the evidence that defendant committed criminal trespass, but lacked the intent to commit a crime upon entering the hotel. Defendant was apprehended while carrying burglar's tools, in proximity to a locked gate, which bore signs of forced entry, carrying stolen property. Thus, it was not error for the court to refuse to charge any lesser included offenses (see, e.g., People v. Evans, 135 A.D.2d 648, lv denied 71 N.Y.2d 895; People v. Lopez, 176 A.D.2d 468, lv denied 79 N.Y.2d 860; People v. McCarron, 114 A.D.2d 977).
Defendant's remaining contentions are unpreserved, or are meritless.
Concur — Sullivan, J.P., Carro, Wallach, Asch and Rubin, JJ.