PEOPLE v. GREEN (1998)

Judgment, Supreme Court, New York County (Joan Sudolnik, J.), rendered October 5, 1995, convicting defendant, after a jury trial, of burglary in the third degree, and sentencing him, as a second felony offender, to a term of 3 1/212 to 7 years, unanimously affirmed.

 Defendant's claim that he was deprived of a fair trial because of improper remarks made by the prosecutor during summation has not been preserved for appellate review and we decline to review it in the interest of justice (People v. Cuevas, 232 A.D.2d 234, 648 N.Y.S.2d 436).   Were we to review defendant's claim, we would find that the challenged remarks consisted of fair comment on the evidence and appropriate responses to the arguments raised by defense counsel in summation (see, People v. Overlee, 236 A.D.2d 133, 666 N.Y.S.2d 572, lv. denied 91 N.Y.2d 976, 672 N.Y.S.2d 855, 695 N.E.2d 724).

 Defendant's request to charge the lesser included offense of criminal trespass was properly denied.   There was no reasonable view of the evidence that defendant committed the lesser included offense but not the greater, in that there was no evidence to support any illegal entry by defendant except an entry of larcenous intent as an essential element of the crime of burglary.   The entry admitted by defendant in his own testimony, if the jury wished to credit it, showed only a legal permissive entry by him on the Friday before the Monday when the crime occurred, a period for which defendant offered a complete alibi defense.

MEMORANDUM DECISION.