People v. Carrion

149 A.D.2d 604, 540 N.Y.S.2d 683, 1989 N.Y. App. Div. LEXIS 4982

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 17, 1989
• Status: Published

Opinion

— Appeal by the defendant, as limited by his brief, from so much of a judgment of the Supreme Court, Kings County (Fertig, J.), rendered July 6, 1987, as convicted him of attempted burglary in the second degree and possession of burglar’s tools, upon a jury verdict, and imposed sentence.

Ordered that the judgment is reversed insofar as appealed from, on the law and as a matter of discretion in the interest of justice, and a new trial is ordered with respect to those counts of the indictment charging the defendant with attempted burglary in the second degree and possession of burglar’s tools.

We agree with the defendant’s claim that the trial court erred in refusing his request to charge the jury as to attempted criminal trespass in the second degree as a lesser included offense of the count of attempted burglary in the second degree (see, People v Henderson, 41 NY2d 233; People v Land, 131 AD2d 883, lv denied 70 NY2d 752; People v Csikortas, 106 AD2d 578; People v King, 44 AD2d 710).

Moreover, in light of the fact that there is to be a new trial on the attempted burglary in the second degree count, we find it appropriate, as a matter of discretion in the interest of justice, to order a new trial on the possession of burglar’s tools count under the circumstances herein. Mollen, P. J., Thompson, Lawrence and Kunzeman, JJ., concur.