PEOPLE v. VASQUEZ (1998)

We reject defendant's contention that County Court erred in refusing to charge criminal trespass in the second degree (Penal Law § 140.15) as a lesser included offense of burglary in the second degree (Penal Law § 140.25 [2] ).  There is no reasonable view of the evidence that defendant unlawfully entered the dwelling but did not intend to commit a crime therein (see, People v. Peyton, 244 A.D.2d 976, 665 N.Y.S.2d 218, lv. denied 91 N.Y.2d 896, 669 N.Y.S.2d 10, 691 N.E.2d 1036;  People v. Clarke, 233 A.D.2d 831, 649 N.Y.S.2d 568, lv. denied 89 N.Y.2d 1010, 658 N.Y.S.2d 248, 680 N.E.2d 622, 90 N.Y.2d 856, 661 N.Y.S.2d 183, 683 N.E.2d 1057).

We reject the contention of defendant that his statements to the police were obtained in violation of his right to counsel.   The statements were made while defendant was in jail on a pending unrelated charge, and defendant failed to meet his burden of establishing that he was represented by an attorney on that charge at the time of the interrogation (see, People v. Rosa, 65 N.Y.2d 380, 387, 492 N.Y.S.2d 542, 482 N.E.2d 21;  People v. Roland, 152 A.D.2d 1002, 543 N.Y.S.2d 808, lv. denied 75 N.Y.2d 775, 551 N.Y.S.2d 917, 551 N.E.2d 118).   Further, the statements were never introduced or referred to at trial.

In light of defendant's prior criminal record, the sentence is neither unduly harsh nor severe.

Judgment unanimously affirmed.

MEMORANDUM: