People v. Grant

Judgment unanimously reversed on the law and new trial granted. Memorandum: Defendant was convicted of burglary in the third degree and grand larceny in the second degree for stealing seven cartons of baseball caps from a trailer atop a flatbed car in the Conrail yard in Niagara Falls. We agree with defendant’s contention on appeal that the court erred in denying his *930request to instruct the jury on trespass as a lesser included offense of burglary in the third degree.

Trespass is a lesser included offense of burglary in the third degree because it is theoretically impossible to commit burglary…