PEOPLE v. MERCADO (2002)

 County Court properly denied defendant's request to charge criminal trespass in the third degree (Penal Law § 140.10 [a]) as a lesser included offense of burglary in the third degree (§ 140.20) where, as here, there is no reasonable view of the evidence that defendant committed the lesser offense but not the greater (see People v. Glover, 57 N.Y.2d 61, 63, 453 N.Y.S.2d 660, 439 N.E.2d 376). “[I]n order to be guilty of burglary for unlawful entry, a defendant must have had the intent to commit a crime at the time of entry” (People v. Gaines, 74 N.Y.2d 358, 363, 547 N.Y.S.2d 620, 546 N.E.2d 913), which intent “may be inferred from the circumstances of the entry” (id. at 362 n. 1, 547 N.Y.S.2d 620, 546 N.E.2d 913; see People v. Barnes, 50 N.Y.2d 375, 381, 429 N.Y.S.2d 178, 406 N.E.2d 1071). We conclude that there is no reasonable view of the evidence, when viewed in the light most favorable to defendant, that he entered the building unlawfully but for an innocent purpose and developed the intent to commit a crime therein after his entry (see People v. Woolard, 124 A.D.2d 763, 764, 508 N.Y.S.2d 259, lv. denied 69 N.Y.2d 751, 512 N.Y.S.2d 1056, 505 N.E.2d 254). In addition, there is no reasonable view of the evidence that defendant was not too intoxicated to form the intent to break into the premises but was too intoxicated at that time to form the intent to commit a crime therein (see People v. Stevenson, 191 A.D.2d 472, 594 N.Y.S.2d 282, lv. denied 81 N.Y.2d 1081, 601 N.Y.S.2d 601, 619 N.E.2d 679).

 Contrary to the further contention of defendant, the court properly determined that he is a persistent felony offender (see § 70.10 [1]) and sentenced him to an aggregate term of incarceration of 15 years to life (see People v. Turner, 234 A.D.2d 704, 707, 651 N.Y.S.2d 655; see also People v. Stauffer, 247 A.D.2d 911, 668 N.Y.S.2d 532, lv. denied 92 N.Y.2d 861, 677 N.Y.S.2d 92, 699 N.E.2d 452). There was undisputed proof that defendant was convicted of five felonies and numerous other offenses over a period of 15 years, and that his criminal behavior was related to his intractable alcoholism, which he failed to address despite many opportunities to do so. The court therefore properly determined that “the history and character of the defendant and the nature and circumstances of his criminal conduct indicate that extended incarceration and life-time supervision will best serve the public interest” (§ 70.10 [2]).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.

MEMORANDUM: