People v. Hamilton

234 A.D.2d 974, 652 N.Y.S.2d 578, 1996 N.Y. App. Div. LEXIS 13724

Opinion

—Judgment unanimously affirmed. Memorandum: Supreme Court did not err in denying defendant’s request to charge burglary in the third degree as a lesser included offense of burglary in the second degree. Viewing the evidence in the light most favorable to defendant, we conclude that there is no reasonable view of the evidence that defendant committed the lesser offense but not the greater by entering a building that was not a dwelling (see, CPL 300.50 [1]; People v Glover, 57 NY2d 61, 63). We further conclude that the verdict is not contrary to the weight of evidence (see, People v Bleakley, 69 NY2d 490, 495) and that the sentence is neither unduly harsh nor severe. (Appeal from Judgment of Supreme Court, Erie County, Rossetti, J.—Burglary, 2nd Degree.) Present—Denman, P. J., Pine, Wesley, Doerr and Balio, JJ.