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

628
KA 10-01247
PRESENT: SCUDDER, P.J., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

STEVEN B. ROSEBOROUGH, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANE I. YOON OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (ERIN TUBBS OF COUNSEL),
FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (John L.
DeMarco, J.), rendered April 14, 2010. The judgment convicted
defendant, upon a jury verdict, of burglary in the third 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 third degree (Penal Law §
140.20). Contrary to defendant’s contention, we conclude under the
circumstances of this case that County Court (McCarthy, J.), properly
denied that part of defendant’s motion seeking dismissal of the
indictment pursuant to CPL 30.30 (see People v Freeman, 38 AD3d 1253,
1253, lv denied 9 NY3d 875, reconsideration denied 10 NY3d 811; People
v Smith, 1 AD3d 955, 956, lv denied 1 NY3d 634). Viewing the evidence
in the light most favorable to defendant, as we must (see People v
Martin, 59 NY2d 704, 705), we further conclude that County Court
(DeMarco, J.), properly denied defendant’s request to charge criminal
trespass in the third degree as a lesser included offense (Penal Law §
140.10). Criminal trespass in the third degree is a lesser included
offense of burglary in the third degree inasmuch as “it is impossible
to commit the greater offense without at the same time committing the
lesser” (People v Blim, 63 NY2d 718, 720; see People v Collier, 258
AD2d 891, 892). Nevertheless, the court properly denied defendant’s
request because, “[i]f defendant’s version of the events were
believed, defendant would not be guilty of any crime” (People v
Sheldon, 262 AD2d 1060, 1061, lv denied 93 NY2d 1045). Thus, “under
no reasonable view of the evidence could the jury have found that
defendant committed the lesser offense but not the greater” (Blim, 63
NY2d at 720). Finally, we conclude that the court did not abuse its
discretion in refusing to permit surrebuttal testimony from
defendant’s wife, part of which concerned a collateral matter (see
                                 -2-                           628
                                                         KA 10-01247

generally People v Petty, 7 NY3d 277, 287), and the other part of
which constituted inadmissible hearsay (see generally People v
Burwell, 159 AD2d 407, 408-409, lv denied 76 NY2d 785).




Entered:   June 13, 2014                        Frances E. Cafarell
                                                Clerk of the Court
