People v. Lee Mack

59 A.D.2d 1052, 400 N.Y.S.2d 503, 1977 N.Y. App. Div. LEXIS 14340

Opinion

Judgment unanimously modified in accordance with memorandum and, as modified, affirmed. Memorandum: As the District Attorney commendably acknowledged, Trial Term erred in denying defendant’s request for a charge that the jury could find defendant guilty of criminal trespass as a lesser included crime of burglary, third degree (People v Henderson, 41 NY2d 233; People v Long, 40 AD2d 984). Defendant’s conviction of burglary, third degree, therefore, must be reversed and a new trial granted on that count. Defendant’s confession of possession of the weapon was sufficiently corroborated (see People v Spillman, 309 NY 295; People v Lo Turco, 256 App Div 1098, affd 280 NY 844); and so the judgment is otherwise affirmed. (Appeal from judgment of Monroe Supreme Court— burglary, third degree.) Present—Simons, J. P., Hancock, Jr., Denman, Goldman and Witmer, JJ.