People v. Logan

• Citation: 604 N.Y.S.2d 147,198 A.D.2d 439
• Parties: The PEOPLE, etc., Respondent, v. Samuel LOGAN, Appellant.
• Decision Date: 22 November 1993
• Court: New York Supreme Court Appellate Division

Page 147

604 N.Y.S.2d 147

198 A.D.2d 439

The PEOPLE, etc., Respondent, v. Samuel LOGAN, Appellant.

Supreme Court, Appellate Division,

Second Department.

Nov. 22, 1993.

Philip L. Weinstein, New York City (Barry D. Leiwant, of counsel), for appellant.

Richard A. Brown, Dist. Atty., Kew Gardens (Steven J. Chananie, Linda Cantoni and John A. Gliedman, of counsel), for respondent.

Before LAWRENCE, J.P., and EIBER, O'BRIEN and SANTUCCI, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Beerman, J.), rendered May 8, 1991, convicting him of burglary in the first degree (two counts), unlawful imprisonment in the first degree, assault in the third degree, and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, on the law, by reversing the defendant's convictions of burglary in the first degree (two counts), vacating the sentences imposed thereon, and remitting the matter for a new trial on those charges; as so modified, the judgment is affirmed.

On the morning of July 11, 1990, the defendant allegedly forced his way into the residence of his former girlfriend. Once inside the complainant's apartment, the defendant pushed her down the stairs and choked her, causing her to lose consciousness. At the trial, the defendant admitted that he assaulted the complainant, but claimed that he went to her residence only to talk to her, and did not force his way inside.

On appeal, the defendant contends that the trial court erred in refusing his request to charge trespass in the second degree as a lesser-included offense of burglary in the first degree. We agree. It is settled law that, upon the request of either party, a lesser included offense must be submitted to the jury if it meets a two-pronged test establishing that (1) it is theoretically impossible to commit the greater crime without concomitantly committing, by the same conduct, the lesser crime, and (2) there is a reasonable view of the evidence that would support a finding that the defendant committed the lesser offense but not the greater (see, CPL 300.50[1]; People v. Glover, 57 N.Y.2d 61, 63, 453 N.Y.S.2d 660, 439 N.E.2d 376). In making this determination, the court is required to view the evidence in the light most favorable to the defendant (see, People v. Martin, 59 N.Y.2d 704, 705, 463 N.Y.S.2d 419, 450 N.E.2d 225; People v. Henderson, 41 N.Y.2d 233, 236, 391 N.Y.S.2d 563, 359 N.E.2d 1357). Only if the evidence excludes "every possible hypothesis but the higher crime" may the trial court refuse to submit to the jury a charge of a lesser-included offense (see, People v. Shuman, 37 N.Y.2d 302, 304, 372 N.Y.S.2d 60, 333 N.E.2d 363).

At bar, it is undisputed that the first prong of the test has been met, since it is theoretically impossible to commit burglary without concomitantly and by the same conduct committing trespass (see, Penal Law §§ 140.15, 140.30; People v. Grant, 132 A.D.2d 929, 518 N.Y.S.2d 262; see also, People v. Nigro, 187 A.D.2d 979, 590 N.Y.S.2d 617). Furthermore, in light of the defendant's testimony that he sought entry to the complainant's residence to talk to her and did not force his...