Opinion
October 3, 1991
Appeal from the Supreme Court, New York County (Murray Mogel, J.).
Defendant was observed emerging from a hatch on the roof of the rear building at 434 Lafayette Street before he wandered into the building. Two women became suspicious and called the police. Meanwhile, another tenant, whose apartment faced the courtyard, heard glass break in the darkened and shuttered apartment two floors below his own. Upon leaning out his window and looking down he saw an individual entering the apartment through the window facing the fire escape. Later it was discovered that there were personal papers strewn on the floor and opened drawers near the broken window.
Shortly after the police arrived, they encountered defendant descending the stairs of the building. Defendant, who was unable to explain his presence in the building, was identified by one of the women as the man she had seen earlier in the courtyard and on the staircase. The tenant identified defendant from his clothing as the person he had seen breaking into the subject apartment.
In light of these facts, we conclude that the verdict was supported by legally sufficient evidence and was not against the weight of the evidence. (See, People v. Bleakley, 69 N.Y.2d 490.)
The trial court properly denied defendant's request to charge criminal trespass in the second degree as a lesser included offense of burglary in the second degree since there was no reasonable view of the evidence which would support a finding that he committed the lesser offense and not the greater. (People v. Glover, 57 N.Y.2d 61; People v. Evans, 135 A.D.2d 648, lv denied 71 N.Y.2d 895.)
Concur — Carro, J.P., Rosenberger, Wallach, Asch and Kassal, JJ.