People v. Kenny

Contrary to the People’s contention, the defendant’s contention that the Supreme Court erred in refusing to charge burglary in the third degree as a lesser-included offense of burglary in the second degree is preserved for appellate review (see CPL 470.05 [2]). We agree with the People, however, that the defendant’s contention is without merit. Viewing the evidence in the *751light most favorable to the defendant (see People v Johnson, 45 NY2d 546, 549 [1978]; People v Henderson, 41 NY2d 233, 236 [1976]), there is no reasonable view of the evidence that supports the conclusion that the defendant…