Opinion
February 21, 1991
Appeal from the County Court of Chemung County (Danaher, Jr., J.).
Defendant was arrested after police officers found him hiding among the ceiling pipes in the boiler room of a laundromat in Chemung County during the early morning hours of October 25, 1988. At that time, defendant was holding a screwdriver which matched perfectly the pry marks found on two vending machines on the premises. A trial was held after which defendant was convicted of third degree burglary and sentenced as a second felony offender to a prison term of 3 1/2 to 7 years. Defendant now appeals.
We affirm. Defendant contends that County Court erred in denying his motion to suppress certain statements given to the police. We initially reject this argument because the record demonstrates that the People did not offer the statements into evidence at trial (see, People v Booker, 141 A.D.2d 925; People v Simms, 124 A.D.2d 349, 350; People v Parker, 90 A.D.2d 565, affd 60 N.Y.2d 714). Moreover, we can find, in any event, no basis to disturb County Court's Huntley determination (see, People v Booker, supra).
We similarly reject defendant's argument that the verdict was against the weight of the evidence. The night clerk at the laundromat testified that on the date in question she locked and secured the building around 8:00 P.M. There was also testimony that entry to the building could be easily gained by applying slight pressure to a service window and disengaging the lock. Defendant was found hiding in the building and in possession of a screwdriver that matched the pry marks found on two vending machines. Viewing the evidence in the light most favorable to the People, we find the evidence sufficient to sustain the conviction (see, People v Contes, 60 N.Y.2d 620, 621).
Finally, we reject defendant's contention that County Court erroneously refused to charge the jury with the lesser included offense of third degree criminal trespass. Again we note that defendant was discovered in possession of a screwdriver that was used in attempts to pry open two vending machines. In our view, there exists no identifiable basis upon which the jury could have found that defendant committed the lesser offense of trespass but not the greater offense of burglary (see, People v Glover, 57 N.Y.2d 61; People v Scarborough, 49 N.Y.2d 364; People v Lattanzio, 156 A.D.2d 757, 760, lv denied 76 N.Y.2d 860).
Judgment affirmed. Mahoney, P.J., Casey, Mikoll, Levine and Mercure, JJ., concur.