People v. Archer

25 A.D.3d 619, 810 N.Y.S.2d 86

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 17, 2006
• Status: Published

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lewis, J.), rendered February 3, 2004, convicting him of burglary in the third degree, possession of burglar’s tools, criminal possession of stolen property in the fifth degree, criminal possession of a controlled substance in the seventh degree, and petit larceny, upon a jury verdict, and imposing sentence. The appeal brings up for review the denied (Grosso, J.), after a hearing (Demakos, J.H.O.), of that branch of the defendant’s omnibus motion which was to suppress physical evidence.

Ordered that the judgment is affirmed.

The hearing court properly denied that branch of the defendant’s omnibus motion which was to suppress physical evidence since the evidence was obtained from a search incident to a lawful arrest (see People v Parker, 306 AD2d 543 [2003]).

The trial court properly refused to charge the jury with trespass (see Penal Law § 140.05) as a lesser-included offense of burglary in the third degree (see Penal Law § 140.20), since no reasonable view of the evidence could lead one to conclude that the defendant, equipped with a burglar’s tools, attempted an unlawful entry into the premises for an innocent, rather than a criminal, purpose (see CPL 300.50 [1]; People v Martin, 59 NY2d 704 [1983]; People v Rohena, 183 AD2d 859 [1992]).

The defendant’s remaining contentions, including those raised in his supplemental pro se brief, are either unpreserved for appellate review or without merit. H. Miller, J.P., Adams, Luciano and Rivera, JJ., concur.