Opinion
December 8, 1998
Appeal from the Supreme Court, New York County (William Wetzel, J.).
Defendant was arrested for burglary after he was observed in the basement of a restaurant by two restaurant employees. The basement was accessible from the public sidewalk by way of a metal "bulkhead" door and descending stairs. The employees testified that defendant was "looking at a wallet" and had another employee's shirt in his hands. When one employee asked defendant what he was doing there, he replied "[i]t's cold outside." On the date of the incident, the temperature was approximately 10 to 15 degrees Fahrenheit and defendant was dressed in a sweater, knit cap, pants and boots.
Reversal is required because the trial court erroneously refused defendant's request for a jury instruction on the lesser included offense of trespass in the third degree ( see generally, People v. Glover, 57 N.Y.2d 61, 63). Trespass in the third degree is plainly a lesser included offense of burglary in the third degree ( see, People v. Blim, 63 N.Y.2d 718, 720; People v. Martin, 59 N.Y.2d 704, 705), and there was a reasonable view of the evidence, when viewed most favorably to the defendant ( see, People v. Martin, supra, at 705), that he did not contemporaneously possess the intent to commit a crime when he entered the premises ( see, People v. Gaines, 74 N.Y.2d 358, 360; People v. Gonzalez, 221 A.D.2d 203).
In light of this determination, we decline to address defendant's additional claim of error relating to the court's Sandoval ruling, which, at the very least, constituted the outermost bounds of a permissible exercise of discretion.
Concur — Milonas, J. P., Rosenberger, Wallach, Tom and Mazzarelli, JJ.