People v. Gutter

Appellate Division of the Supreme Court of New York

People v. Gutter

197 A.D.2d 536, 604 N.Y.S.2d 736

Appellate Division of the Supreme Court of the State of New York·Decided October 4, 1993·Published

Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Felig, J.), rendered June 12, 1991, convicting him of burglary in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, the trial court properly refused to submit to the jury the lesser-included offense of criminal trespass in the second degree, because there was no reasonable view of the evidence which would support a determination that the defendant committed the lesser but not the greater offense (see, CPL 300.50 [1]; People v Rohena, 183 AD2d 859; People v Ferguson, 154 AD2d 706, 707).

Additionally, the defendant’s pro se contention that the trial court erred in its charge by including "remaining unlawfully” as part of the crime of burglary in the second degree is unpreserved for appellate review (see, CPL 470.05 [2]; People v Dillon, 189 AD2d 775). In any event, any error was harmless due to the overwhelming evidence of the defendant’s guilt (see, People v Crimmins, 36 NY2d 230, 241). Rosenblatt, J. P., Lawrence, O’Brien and Ritter, JJ., concur.

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—Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Felig, J.), rendered June 12, 1991, convicting him of burglary in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contention, the trial court properly refused to submit to the jury the lesser-included offense of criminal trespass in the second degree, because there was no reasonable view of the evidence which would support a determination that the defendant committed the lesser but not the greater offense (see, CPL 300.50 [1]; People v Rohena, 183 AD2d 859; People v Ferguson, 154 AD2d 706, 707).

Additionally, the defendant’s pro se contention that the trial court erred in its charge by including "remaining unlawfully” as part of the crime of burglary in the second degree is unpreserved for appellate review (see, CPL 470.05 [2]; People v Dillon, 189 AD2d 775). In any event, any error was harmless due to the overwhelming evidence of the defendant’s guilt (see, People v Crimmins, 36 NY2d 230, 241). Rosenblatt, J. P., Lawrence, O’Brien and Ritter, JJ., concur.

People v. Gutter, 197 A.D.2d 536, 604 N.Y.S.2d 736 (N.Y. Ct. App. 1993).

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Opinion

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