Opinion
March 16, 1990
Appeal from the Supreme Court, Monroe County, Mark, J.
Present — Callahan, J.P., Doerr, Green, Pine and Lawton, JJ.
Judgment unanimously affirmed. Memorandum: Defendant was convicted of second degree burglary and petit larceny for unlawfully entering the victim's private hospital room and stealing money from her wallet. The court properly charged the jury that the victim's private hospital room was a dwelling because it was a unit the victim occupied for lodging at night (see, Penal Law § 140.00, [3]; People v Ivory, 99 A.D.2d 154; People v Niepoth, 55 A.D.2d 970; see also, People v Germany, 41 Colo. App. 304, 586 P.2d 1006). Since the proof established defendant's conviction for second degree burglary because he unlawfully entered the victim's dwelling with intent to commit a crime therein, there was no reasonable view of the evidence that defendant committed only a lesser included burglary or trespass (see, People v Glover, 57 N.Y.2d 61; People v Sheirod, 124 A.D.2d 14, 16, lv denied 70 N.Y.2d 656; People v McCarron, 114 A.D.2d 977, 978). Defendant's remaining claims lack merit.