Opinion
October 10, 1989
Appeal from the County Court, Westchester County (Nicolai, J.).
Ordered that the judgment is affirmed.
Viewing the evidence in the light most favorable to the prosecution (see, People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt of burglary in the third degree beyond a reasonable doubt. Moreover, upon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence (CPL 470.15).
Upon a review of this record we discern no rational basis upon which the jury could have rejected that portion of the prosecution's case which is indispensable to the establishment of burglary in the third degree and yet accept so much of the proof as would establish criminal trespass (see, People v Scarborough, 49 N.Y.2d 364, 369-370). Thus, the court did not err in denying the defendant's request to charge criminal trespass in the third degree as a lesser included offense of burglary in the third degree (see, People v Evans, 135 A.D.2d 648; People v Woolard, 124 A.D.2d 763; People v Flores, 113 A.D.2d 899; cf., People v Henderson, 41 N.Y.2d 233; People v Land, 131 A.D.2d 883).
We have considered the defendant's remaining contentions and find them to be either unpreserved for appellate review or without merit. Mollen, P.J., Brown, Lawrence and Spatt, JJ., concur.