           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

1098
KA 09-01279
PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                     V                              MEMORANDUM AND ORDER

VERNON L. CARTER, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

VERNON L. CARTER, DEFENDANT-APPELLANT PRO SE.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MATTHEW DUNHAM OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Richard A.
Keenan, J.), rendered May 21, 2009. The judgment convicted defendant,
upon a jury verdict, of burglary in the second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him,
upon a jury verdict, of burglary in the second degree (Penal Law §
140.25 [2]). County Court properly denied defendant’s request to
charge criminal trespass in the second degree (§ 140.15 [1]) as a
lesser included offense of burglary in the second degree because
“[t]here is no reasonable view of the evidence that defendant entered
the building without the intent to commit a crime therein” (People v
Smith, 12 AD3d 1106, 1107, lv denied 4 NY3d 767; see People v Rickett,
94 NY2d 929, 930). Furthermore, viewing the evidence in light of the
elements of the crime as charged to the jury (see People v Danielson,
9 NY3d 342, 349), we reject defendant’s contention that the verdict is
against the weight of the evidence (see generally People v Bleakley,
69 NY2d 490, 495). To the contrary, “[t]he overwhelming weight of the
evidence supports the [verdict convicting defendant] of burglary in
the second degree” (People v Moore, 190 AD2d 1023, 1023, lv denied 81
NY2d 1077). We have considered defendant’s contentions in his pro se
supplemental brief and conclude that they are without merit.




Entered:   November 8, 2013                        Frances E. Cafarell
                                                   Clerk of the Court
