Opinion
June 18, 1999
Appeal from Judgment of Monroe County Court, Egan, J. — Burglary, 3rd Degree.
PRESENT: GREEN, J. P., LAWTON, PIGOTT, JR., CALLAHAN AND BALIO, JJ.
Judgment unanimously affirmed. Memorandum: Defendant appeals from a judgment convicting him of burglary in the third degree (Penal Law § 140.20). The charge arose when police officers investigating an alarm sounding at a building on 200 East Avenue at about 2:30 A.M. observed defendant crawl through a broken window and hide behind a dumpster. Audiotapes were found on defendant's person, as well as on the ground and on the windowsill of the broken window. Defendant testified that he was on his way home, heard the alarm sounding, and entered the building to prevent a crime in progress.
We reject the contention of defendant that his testimony provided a rational basis for the jury to reject the prosecutor's evidence on the issue of intent and thus that County Court erred in denying defendant's request to charge criminal trespass in the third degree as a lesser included offense of burglary in the third degree. There was no reasonable view of the evidence to support a finding that defendant committed the lesser offense but not the greater (see, People v. Glover, 57 N.Y.2d 61, 64). If defendant's version of the events were believed, defendant would not be guilty of any crime.
The court properly replaced a sworn juror with an alternate juror. On Friday morning, when the court's charge was to be given, a sworn juror telephoned the court clerk and indicated that he was sick with the flu and could not come in that day. The court denied defendant's request to adjourn the trial until Monday, noting that three days between summations and the charge would be too long. There was no reason to delay the proceedings at a point so close to their conclusion on the chance that the absent juror would be available on the following Monday (see, People v. McDonald, 143 A.D.2d 1050, 1052, lv denied 73 N.Y.2d 857).