Opinion
June 29, 1987
Appeal from the County Court, Nassau County (Winick, J.).
Ordered that the judgments are reversed, on the law and the matters are remitted for a new trial on indictment No. 57180 and for further proceedings on indictment No. 57603.
The complainant in indictment No. 57180 testified that she was lying in her bed awake when she heard noise at her open window, and she watched as two black hands appeared and pushed the window further open. The person outside then crawled under the window and entered the complainant's bedroom with that part of his body above the waist. He and the complainant looked at each other briefly, the man said "there's somebody in here" and quickly left. The complainant identified the defendant as that person.
There was no direct evidence of the defendant's intent in climbing in the complainant's window. Although from his actions the jury could infer a criminal purpose, they were not required to do so and the trial court erred in refusing the defendant's request to submit to the jury a charge of criminal trespass (Penal Law § 140.10) which does not require a criminal intent (see, People v Henderson, 41 N.Y.2d 233, 236-237).
It was also error to allow, over objection, the arresting officer's testimony which inferentially bolstered the complainant's identification (see, People v Ross, 79 A.D.2d 666; People v Jones, 96 A.D.2d 868). This error cannot be considered harmless in light of the proof which was less than overwhelming (see, People v Favreau, 77 A.D.2d 696) in this one-eyewitness identification case.
Lastly, in view of our reversal of the defendant's conviction on indictment No. 57180, we must also vacate the defendant's plea of guilty to indictment No. 57603 which was induced by the court's promise of a sentence concurrent with the one imposed for the conviction after trial (see, People v Fuggazzatto, 62 N.Y.2d 862). Thompson, J.P., Bracken, Lawrence and Harwood, JJ., concur.