Opinion
May 27, 1994
Appeal from the Monroe County Court, Maloy, J.
Present — Green, J.P., Balio, Fallon, Callahan and Davis, JJ.
Order unanimously reversed on the law, motion to reduce charge denied, first count of indictment reinstated and matter remitted to Monroe County Court for further proceedings on the indictment. Memorandum: The court erred in reducing the first count of the indictment, charging defendant with burglary in the second degree (Penal Law § 140.25), to criminal trespass in the second degree (Penal Law § 140.15). There was competent evidence presented to the Grand Jury that, if accepted as true, would establish every element of burglary in the second degree and defendant's commission of that offense (see, People v Mikuszewski, 73 N.Y.2d 407, 411; People v. Jennings, 69 N.Y.2d 103, 115). Defendant's intent to commit a crime within the dwelling may be inferred from the surrounding circumstances (see, People v. Mackey, 49 N.Y.2d 274; People v. Walker, 175 A.D.2d 674, lv denied 78 N.Y.2d 1131; People v. Murray, 168 A.D.2d 573), including the forcible entry (see, People v. Murray, supra; People v Whitfield, 152 A.D.2d 998, lv denied 74 N.Y.2d 900; People v Haile, 128 A.D.2d 891), the property damage discovered inside (see, People v. Whitfield, supra; People v. Woodard, 148 A.D.2d 997, lv denied 74 N.Y.2d 749), and the fact that the contents of a nightstand were disturbed (see, People v. Ryan, 180 A.D.2d 769, lv denied 79 N.Y.2d 1054; People v. Middleton, 140 A.D.2d 550, lv denied 72 N.Y.2d 959). Therefore, that part of defendant's motion seeking reduction of the charges in the indictment is denied, and the first count, charging defendant with burglary in the second degree, is reinstated.