People v. Flores

Appeal by defendant from a judgment of the Supreme Court, Kings County (Deeley, J.), rendered May 2, 1983, convicting him of burglary in the second degree and petit larceny, upon a jury verdict, and imposing sentence.

Judgment affirmed.

The defendant argues that the trial court erred in refusing his request to charge criminal trespass as a lesser included offense of burglary in the second degree. To establish entitlement to a lesser included offense charge, the defendant must show both that the offense he desires to have charged is a "lesser included offense”, and that there is a reasonable view of the evidence in the particular case which would support a finding that he committed the lesser offense but not the greater (CPL 1.20 [37]; 300.50 [1]; People v Glover, 57 NY2d 61, 63). At bar, the first requirement is satisfied (see, People v King, 44 AD2d 710). However, the second requirement is not. Purely speculative hypotheses are insufficient (People v Scarborough, 49 NY2d 364, 372-373). Defendant offered no evidence at trial, no statements of his were, admitted into evidence, the People’s case contained no contradictory proof and there was no utilization of cross-examination to impugn the prosecution’s evidence on the element of intent to commit a crime within the premises (cf. People v Scarborough, supra, at pp 369-371). Thus, a charge on the lesser included offense of criminal trespass would have unacceptably forced the jury to " ' "resort to sheer speculation” ’ ” (People v Scarborough, supra, at p 371, quoting from People v Discala, 45 NY2d 38, 43). Defendant’s reliance on People v Henderson (41 NY2d 233) is misplaced. The facts at bar are clearly distinguishable in that (1) here, unlike in People v Henderson (supra), defendant had no prior association with the complainant’s premises, and (2) it is undisputed that property was actually taken from the complainant’s premises.

Defendant’s remaining contention regarding an alleged er*900ror in the court’s charge to the jury has not been preserved for appellate review in that no objection was made, nor was a request for curative instructions made at a point where an opportunity to do so was present (CPL 470.05 [2]; People v Robinsin, 103 AD2d 852). In any event, this contention is devoid of merit. Mollen, P. J., Bracken, Brown and Rubin, JJ., concur.