Opinion
February 2, 1990
Appeal from the Supreme Court, Monroe County, Scudder, J.
Present — Boomer, J.P., Green, Pine, Lawton and Davis, JJ.
Judgment unanimously modified on the law and as modified affirmed and matter remitted to Supreme Court, Monroe County, for further proceedings, in accordance with the following memorandum: Defendant's conviction of burglary in the second degree must be reversed and a new trial granted because the trial court committed reversible error in denying defendant's request that the court omit the "or remains" language from its charge on burglary in the second degree (People v Gaines, 74 N.Y.2d 358, 363). The court should not have referred to unlawful remaining in its burglary charge since the situation to which that language applies was not present in this case. In our view, "the charge given by the court could have misled the jurors into thinking that any illegal entry constituted a burglary when coupled with a subsequent crime" (People v Gaines, supra, at 363). Defendant, in his trial testimony, tendered a reason purporting to show that he lacked the requisite intent to commit a crime at the time of his unlawful entry into the dwelling. Thus, "defendant was entitled to a charge clearly stating that the jury must find that he intended to commit a crime at the time he entered the premises unlawfully" (People v Gaines, supra, at 363).
Because a new trial is necessary on the burglary count of the indictment, we do not reach defendant's remaining contentions.