PEOPLE v. AGRELO TRAVIESO (1999)

Judgment, Supreme Court, New York County (Martin Rettinger, J.), rendered July 30, 1996, convicting defendant, after a jury trial, of burglary in the third degree and possession of burglar's tools, and sentencing him, as a second felony offender, to concurrent terms of 3 to 6 years and 1 year, respectively, unanimously affirmed.

 The court properly refused to charge criminal trespass as a lesser included offense of burglary in the third degree, since there was no reasonable view of the evidence that defendant entered the restaurant for a noncriminal purpose (see, People v. Ray, 254 A.D.2d 189, 678 N.Y.S.2d 890).   Defendant's theory that he entered in search of shelter is based on speculation and unsupported by any evidence.

 While, in this unlawful entry case, the court initially failed to omit from its charge on burglary any reference to “remains unlawfully” (see, People v. Gaines, 74 N.Y.2d 358, 363, 547 N.Y.S.2d 620, 546 N.E.2d 913), it subsequently provided a proper supplemental charge, which obviated any prejudice to defendant (see, People v. Cannon, 168 A.D.2d 356, 562 N.Y.S.2d 679, lv. denied 77 N.Y.2d 904, 569 N.Y.S.2d 936, 572 N.E.2d 619).  Moreover, since there was no evidence of an entry without larcenous intent, there was no possibility that the jury was misled by the court's initial use of the “or remains” language (People v. Ray, supra).

MEMORANDUM DECISION.