People v. Henderson

Gary Henderson was tried and convicted by a jury on a single-count indictment charging him with the felony of attempted burglary in the third degree (Penal Law, §§ 110.00, 140.20). The sole issue on this appeal is whether the trial court committed error when it refused a defense request to charge the jury that it might consider the misdemeanor of criminal trespass in the third degree (Penal Law, § 140.10) as a lesser included offense to the crime charged. The Appellate Division, Third Department, held that it was, reversed the conviction and ordered a new trial. We agree.

The trial proof,…