Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 6, 2012
Gonzalez, P.J., Sweeny, Richter, Roman, Clark, JJ.
Judgment, Supreme Court, New York County (Rena K. Uviller, J.), rendered April 26, 2010, convicting defendant, after a jury trial, of burglary in the second degree and unlawful imprisonment in the second degree, and sentencing him, as a second felony offender, to an aggregate term of 6 years, unanimously affirmed.
The court properly declined to submit criminal trespass in the second degree as a lesser included offense, since there was no reasonable view of the evidence, viewed most favorably to defendant, to support such a charge (see e.g. People v Zokari, 68 AD3d 578 , lv denied 15 NY3d 758 ; People v Jones, 33 AD3d 461 [1st Dept 2006], lv denied 7 NY3d 926 ; People v Mongen, 157 AD2d 82 , appeal dismissed 76 NY2d 1015 ). The jury would have had no basis for finding that defendant entered unlawfully, but without the intent to unlawfully restrain the victim or otherwise commit a crime, and subsequently formed that intent.
Defendant entered the apartment of his former girlfriend unlawfully, hid under a crib, and grabbed her immediately after she discovered him, telling her that neither the police nor her mother could help her now. He then continuously held her in the apartment against her will for 16 hours. Defendant's conduct was thus inconsistent with a claim that, at the time he entered, he simply wanted to talk to the victim about their relationship.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: DECEMBER 6, 2012
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