Opinion
November 18, 1985
Appeal from the County Court, Suffolk County (Copertino, J.).
Judgment affirmed.
Viewing the evidence in the light most favorable to defendant (People v Martin, 59 N.Y.2d 704, 705-706), there is no reasonable view of the evidence which would support a factual finding that defendant committed a burglary but that the premises was not a dwelling under Penal Law § 140.00 (2), (3) (see, e.g., People v Ivory, 99 A.D.2d 154).
The uncontroverted evidence indicated that the burglarized premises was comprised of a front extension to a residential home used as an antique shop, with a doorway, closed off by only a small partition and no-entry sign, which led to a room in which the complainant had lodged at night for the previous 4 1/2 years. Furthermore, there was no reasonable view of the evidence which could lead the jury to conclude that defendant and his accomplice were responsible for the forced entry, but did not actually enter the room used as a lodging (see, People v Niepoth, 55 A.D.2d 970). Thus, the court did not err in refusing defendant's request to charge burglary in the third degree (Penal Law § 140.20) as a lesser included offense of burglary in the second degree (see, People v Glover, 57 N.Y.2d 61).
We have examined defendant's remaining contentions and find them to be without merit. O'Connor, J.P., Niehoff, Lawrence and Kooper, JJ., concur.