64 A.D.2d 658 | N.Y. App. Div. | 1978
Appeal by defendant from a judgment of the County Court, Nassau County, rendered May 7, 1977, convicting him of criminal mischief in the fourth degree and criminal trespass in the third degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. Defendant was charged with the crimes of attempted burglary in the third degree and criminal mischief in the fourth degree. As a lesser included crime of attempted burglary, defense counsel requested that the trial court charge trespass, noting that there were two possibilities as to the degree of such crime to be considered, criminal trespass in the third degree, a class B misdemeanor, and simple trespass, a violation. The trial court stated it would charge only as to the misdemeanor and it did so. That was error. Under the facts of the case, a question of fact for the jury was presented as to whether the defendant actually entered the office of the service station he was charged with attempting to burglarize. Having been charged with regard to criminal trespass in the third degree only, the jury was not permitted by the trial court to make such a determination. However, there is a reasonable view of the evidence under which the jury could have acquitted the defendant of criminal trespass in the third degree and convicted him of simple trespass. Accordingly, the trial court should have