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THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. STEVEN B. ROSEBOROUGH, DEFENDANT–APPELLANT.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of burglary in the third degree (Penal Law § 140.20). Contrary to defendant's contention, we conclude under the circumstances of this case that County Court (McCarthy, J.), properly denied that part of defendant's motion seeking dismissal of the indictment pursuant to CPL 30.30 (see People v. Freeman, 38 AD3d 1253, 1253, lv denied 9 NY3d 875, reconsideration denied 10 NY3d 811; People v. Smith, 1 AD3d 955, 956, lv denied 1 NY3d 634). Viewing the evidence in the light most favorable to defendant, as we must (see People v. Martin, 59 N.Y.2d 704, 705), we further conclude that County Court (DeMarco, J.), properly denied defendant's request to charge criminal trespass in the third degree as a lesser included offense (Penal Law § 140.10). Criminal trespass in the third degree is a lesser included offense of burglary in the third degree inasmuch as “it is impossible to commit the greater offense without at the same time committing the lesser” (People v. Blim, 63 N.Y.2d 718, 720; see People v. Collier, 258 A.D.2d 891, 892). Nevertheless, the court properly denied defendant's request because, “[i]f defendant's version of the events were believed, defendant would not be guilty of any crime” (People v. Sheldon, 262 A.D.2d 1060, 1061, lv denied 93 N.Y.2d 1045). Thus, “under no reasonable view of the evidence could the jury have found that defendant committed the lesser offense but not the greater” (Blim, 63 N.Y.2d at 720). Finally, we conclude that the court did not abuse its discretion in refusing to permit surrebuttal testimony from defendant's wife, part of which concerned a collateral matter (see generally People v. Petty, 7 NY3d 277, 287), and the other part of which constituted inadmissible hearsay (see generally People v. Burwell, 159 A.D.2d 407, 408–409, lv denied 76 N.Y.2d 785).
Frances E. Cafarell
Clerk of the Court
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Docket No: KA 10–01247
Decided: June 13, 2014
Court: Supreme Court, Appellate Division, Fourth Department, New York.
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