Opinion
196 SSM 26.
Decided December 15, 2005.
APPEAL, by permission of a Justice of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered April 5, 2005. The Appellate Division affirmed a judgment of the Supreme Court, New York County (Budd G. Goodman, J.), which had convicted defendant, upon a jury verdict, of burglary in the second degree, criminal mischief in the third degree, possession of burglar's tools (6 counts), and criminal possession of a controlled substance in the seventh degree.
People v. Devonish, 17 AD3d 111, reversed.
Legal Aid Society, New York City ( Jeffrey I. Richman of counsel), for appellant. Robert M. Morgenthau, District Attorney, New York City ( Sandra E. Cavazos of counsel), for respondent.
Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO, READ and R.S. SMITH concur in memorandum.
OPINION OF THE COURT
MEMORANDUM.
The order of the Appellate Division should be reversed and a new trial ordered.
Defendant was convicted of burglary in the second degree after he was found inside a locked church building with a bag containing the kinds of tools commonly used by burglars. A witness for the People, a general contractor for the church, testified that he stored his tools in the church basement and that one of the tools found in defendant's possession was his for "sure," and the others might have been. Viewing the evidence in the light most favorable to defendant ( see People v. Discala, 45 NY2d 38, 42), the jury was entitled to infer that defendant did not bring the tools with him to the church, and thus that the evidence failed to show that he had criminal intent at the time of entry ( see People v. Scarborough, 49 NY2d 364, 373). It was error to refuse defendant's request that the jury be charged with the lesser included offense of criminal trespass in the second degree (CPL 300.50).
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order reversed, etc.