Opinion
January 28, 1993
Appeal from the Supreme Court, New York County (James Leff, J.).
Defendant was discovered rummaging through complainant's pocketbook in a reception area adjacent to her private office. The pocketbook had been left in the office by complainant while she went out to buy food. Supreme Court instructed the jurors that, to be guilty of the crime of burglary in the third degree, it must be established that defendant unlawfully entered the reception area with the intent to commit a crime therein.
Although defense counsel interposed no objection to the court's charge, on appeal, defendant points out that a reception area is open to the public and that the trespassory element of the crime is therefore lacking. We agree (see, People v. Powell, 54 N.Y.2d 524, 526-527; People v. Torres, 162 A.D.2d 385, lv denied 76 N.Y.2d 897) and, while the error is unpreserved for appellate review (People v. Iannelli, 69 N.Y.2d 684, cert denied 482 U.S. 914), we reverse as a matter of discretion in the interest of justice (CPL 470.15 [c]; People v. Jones, 81 A.D.2d 22, 42). Defendant entered the reception area lawfully and cannot be found guilty of burglary based upon that entry (Penal Law § 140.20; People v. Graves, 76 N.Y.2d 16).
Defendant's claim that his attorney failed to provide effective assistance of counsel because counsel's summation failed to present a coherent defense theory is without merit. "A contention of ineffective assistance of trial counsel requires proof of less than meaningful representation, rather than simple disagreement with strategies and tactics" (People v. Rivera, 71 N.Y.2d 705, 708-709, citing People v. Benn, 68 N.Y.2d 941). Here, counsel presented three theories upon which defendant's acquittal could have been based. Furthermore, read within the proper context, counsel's comments, rather than effectively arguing for defendant's conviction, were clearly and strategically made to encourage the jury to carefully deliberate upon the evidence.
We have considered defendant's remaining claims and find them to be meritless.
Concur — Murphy, P.J., Wallach, Ross, Asch and Rubin, JJ.