People v. Devonish

Saxe, J.P., dissents in a memorandum as follows:

When a reasonable view of the evidence would support the conclusion that the defendant committed the lesser offense, but not the greater, the court must submit the lesser included offense to the jury upon the request of a party (CPL 300.50). The judgment convicting defendant of burglary in the second degree should be reversed and the matter remanded for a new trial, because, in view of the testimony, it was error to decline defendant’s request that the jury be charged as to the lesser included offense of criminal trespass in the second degree.

The…