Appellate Division of the Supreme Court of New York, 2012

People v. Kenny

People v. Kenny
Appellate Division of the Supreme Court of New York · Decided December 5, 2012
101 A.D.3d 750; 955 N.Y.2d 361
People v. Kenny

Opinion of the Court

Contrary to the People’s contention, the defendant’s contention that the Supreme Court erred in refusing to charge burglary in the third degree as a lesser-included offense of burglary in the second degree is preserved for appellate review (see CPL 470.05 [2]). We agree with the People, however, that the defendant’s contention is without merit. Viewing the evidence in the *751light most favorable to the defendant (see People v Johnson, 45 NY2d 546, 549 [1978]; People v Henderson, 41 NY2d 233, 236 [1976]), there is no reasonable view of the evidence that supports the conclusion that the defendant committed the lesser offense but not the greater (see CPL 300.50 [1]; People v Negron, 91 NY2d 788, 792 [1998]; People v Magnum, 88 AD3d 467 [2011]; People v Holloway, 45 AD3d 477 [2007]; People v Camara, 44 AD3d 492 [2007]; People v Watson, 187 AD2d 743, 745 [1992]). Angiolillo, J.P., Sgroi, Cohen and Miller, JJ., concur.

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