People v. Kenny

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.