Opinion
April 17, 1989
Appeal from the Supreme Court, Kings County (Fertig, J.).
Ordered that the judgment is reversed insofar as appealed from, on the law and as a matter of discretion in the interest of justice, and a new trial is ordered with respect to those counts of the indictment charging the defendant with attempted burglary in the second degree and possession of burglar's tools.
We agree with the defendant's claim that the trial court erred in refusing his request to charge the jury as to attempted criminal trespass in the second degree as a lesser included offense of the count of attempted burglary in the second degree (see, People v. Henderson, 41 N.Y.2d 233; People v. Land, 131 A.D.2d 883, lv denied 70 N.Y.2d 752; People v. Csikortas, 106 A.D.2d 578; People v. King, 44 A.D.2d 710).
Moreover, in light of the fact that there is to be a new trial on the attempted burglary in the second degree count, we find it appropriate, as a matter of discretion in the interest of justice, to order a new trial on the possession of burglar's tools count under the circumstances herein. Mollen, P.J., Thompson, Lawrence and Kunzeman, JJ., concur.