People v. Avery

Judgment unanimously affirmed. Memorandum: Defendant was convicted of burglary in the first degree and assault in the third degree. He contends that the trial court erred in refusing to submit criminal trespass as a lesser included offense of burglary. Defendant sought such a charge before the court commenced its instructions to the jury. In declining the request, the court ruled that it was untimely and that there was no reasonable view of the evidence which would support a finding that defendant committed criminal trespass but did not commit burglary.

While we agree with defendant that the…