Opinion
February 10, 2000
Judgment, Supreme Court, New York County (Dorothy Cropper, J.), rendered February 11, 1998, convicting defendant, after a jury trial, of burglary in the third degree and possession of burglars' tools, and sentencing him, as a second felony offender, to concurrent terms of 3 1/2 to 7 years and 1 year, unanimously affirmed.
Grace Vee, for respondent.
Beth S. Lyons, for defendant-appellant.
SULLIVAN, J.P., MAZZARELLI, ELLERIN, LERNER, FRIEDMAN, JJ.
The court properly declined to charge criminal trespass in the third degree as a lesser included offense of burglary. We find no reasonable view of the evidence that would permit the jury to find that defendant committed criminal trespass but not burglary (see,People v. Scarborough, 49 N.Y.2d 364). The Sandoval ruling was an appropriate exercise of discretion (see, People v. Pavao, 59 N.Y.2d 282, 292).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.