People v. Vargas

168 A.D.2d 586

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Broomer, J.), rendered March 23, 1988, convicting him of burglary in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Contrary to the defendant’s contentions, the trial court properly denied his request to charge criminal trespass in the third degree as a lesser included offense of burglary in the third degree, since there was no reasonable view of the evidence which would support a finding that the defendant committed the lesser offense but not the greater (see, CPL 300.50 [1]; People v Scarborough, 49 NY2d 364; People v Evans, 135 AD2d 648, 650; People v Woolard, 124 AD2d 763). The record reveals that the defendant and another man were arrested in a closed warehouse and carpenter shop on a Saturday evening in August. According to the arresting officer, the defendant and his accomplice were attired in dirty clothing and the accomplice—who was barechested—was in possession of tools commonly used in the commission of burglaries. A further inspection of the premises disclosed that a ladder was affixed to a roof hatch and that the hatch had been forced open. Although defense counsel hypothesized in summation that the defendant and his accomplice could have been seeking employment in the warehouse, the foregoing assertion, together with the defendant’s present contentions that the proof adduced supported submission of the lesser charge, rest upon pure speculation rather than evidence contained in the record (see, People v Scarborough, supra, at 371; People v Evans, supra; People v Woolard, supra, at 764).

We have reviewed the defendant’s remaining contention and find it to be without merit. Lawrence, J. P., Kooper, Sullivan and Rosenblatt, JJ., concur.