People v. Martin

Kane and Weiss, JJ.,

dissent and vote to affirm in the following memorandum by Kane, J. Kane, J. (dissenting). We are unable to agree that there is any reasonable view of the evidence which would support a finding that defendant committed the crime of criminal trespass in the third degree but did not commit the crime of burglary. Although defendant was apprehended after fleeing from the building, he was observed by an arresting officer diving out of a window from the store where the burglar alarm had been activated. He left a trail directly to the store’s office where only the secretary’s desk had been disturbed. Between $60 and $80 was missing from a cash bag in that desk. Defendant, from the witness stand, admitted being familiar with the store and was unable to explain the sum of $88.61 on his person at the time of his arrest. Moreover, he even admitted that his presence in the store was to obtain a battery. His defense of intoxication is unpersuasive. These facts are clearly distinguishable from those set forth in People v Henderson (41 NY2d 233), where there had been no entry into the building at the time of the breaking, or in People v Cook (51 AD2d 1072), which involved the taking or unauthorized use of a motor vehicle. Here the evidence is, in our view, overwhelming. The provisions of CPL 300.50 set forth a rule of reason. It does not permit a jury to choose some lesser offense when proof of that offense necessarily proves the greater crime as well (People v Scarborough, 49 NY2d 364). In the instant case, presence in the building with an admitted intent to steal and subsequent apprehension with unexplained fruits of a crime clearly establish that a jury would be required to engage in pure speculation to render a verdict of guilt in a lesser degree (People v Discala, 45 NY2d 38, 43). We would affirm the conviction.