Opinion
February 10, 1999
Appeal from Judgment of Supreme Court, Monroe County, Affronti, J. — Burglary, 3rd Degree.
Present — Green, J. P., Pine, Wisner, Callahan and Balio, JJ.
Judgment unanimously affirmed. Memorandum: Defendant was charged in separate indictments with crimes committed on January 1, 1995 (indictment No. 95-88) and February 7, 1995 (indictment No. 95-176). The indictments were consolidated for trial, and we granted defendant's motion to consolidate the appeals. We reject defendant's contention that Supreme Court erred in refusing to charge criminal trespass in the third degree (Penal Law § 140.10) and trespass (Penal Law § 140.05) as lesser included offenses of burglary in the third degree (Penal Law § 140.20) (indictment No. 95-88). Although those offenses are proper lesser included offenses of burglary in the third degree, there is no reasonable view of the evidence to support a finding that defendant committed the lesser offenses but not the greater ( see, People v. Peyton, 244 A.D.2d 976, 977, lv denied 91 N.Y.2d 896; People v. Mauricio, 215 A.D.2d 326, lv denied 86 N.Y.2d 738).
We also reject the contention that the evidence is legally insufficient to sustain the verdict finding defendant guilty of burglary in the second degree, petit larceny and attempted petit larceny (indictment No. 95-176) ( see, People v. Bleakley, 69 N.Y.2d 490, 495). The People's proof of defendant's forced entry into the apartment, together with the testimony of individuals with authority over the apartment and the property contained therein, is sufficient to establish that defendant did not have license or permission to enter the apartment or to remove items therefrom ( see, People v. Hall, 224 A.D.2d 1000, 1001, lv denied 88 N.Y.2d 879; People v. Battle, 202 A.D.2d 1045, lv denied 83 N.Y.2d 908).
Defendant's contention that the court's instruction on reasonable doubt is erroneous has not been preserved for our review ( see, CPL 470.05). In any event, the instruction on reasonable doubt, when viewed as a whole, conveyed the proper legal standard ( see, People v. Swift, 241 A.D.2d 949, 950, lv denied 91 N.Y.2d 881, 1013; People v. Romanelli, 239 A.D.2d 940, 941, lv denied 90 N.Y.2d 910). Finally, the sentences are neither unduly harsh nor severe.