| People v Miles |
| 2008 NY Slip Op 07805 [55 AD3d 955] |
| October 16, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Ernest Miles,Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Christopher D. Horn of counsel), forrespondent.
Cardona, P.J. Appeal from a judgment of the County Court of Albany County (Breslin, J.),rendered August 6, 2007, upon a verdict convicting defendant of the crime of burglary in the thirddegree.
After a jury trial, defendant was found guilty of burglary in the third degree based upon his unlawfulentry into a facility operated by Waste Management, Inc. located in the City of Albany. He wassentenced to 3½ to 7 years in prison.
On this appeal, defendant first contends that County Court erred by refusing to dismiss juror No.21 for cause, thereby forcing defendant to exercise a peremptory challenge. Because he thereafterexhausted all peremptory challenges, defendant claims that he is entitled to a new trial pursuant to CPL270.20 (2). We do not agree. Any alleged error on County Court's part was cured when defendantwas granted two extra peremptory challenges during a meaningful point in the jury selection process(see People v Apolinar, 208 AD2d 548, 550 [1994], lv denied 84 NY2d 1028[1995]; People v Wales, 138 AD2d 766, 768 [1988], lv denied 72 NY2d 868[1988]; People v Hines, 109 AD2d 893, 893 [1985], lv denied 66 NY2d 764[1985]).
We are also unpersuaded by defendant's contention that County Court erred in denying his requestto charge criminal trespass in the third degree as a lesser included offense of burglary [*2]in the third degree. Viewing the evidence in the light most favorable todefendant, we agree with County Court that no reasonable view of the evidence would support afinding that defendant "knowingly enter[ed] or remain[ed] unlawfully in" the Waste Management facility(Penal Law § 140.10 [criminal trespass in the third degree]), yet lacked the requisite "intent tocommit a crime therein" (Penal Law § 140.20 [burglary in the third degree]). The recordestablishes that a window at the facility was broken, the burglar alarm was triggered, telephones and ananswering machine were missing, and defendant's blood was on the floor. Given this evidence, as wellas "the absence of any evidence suggesting a noncriminal purpose for entry" (People v Martinez, 9 AD3d 679, 681[2004], lv denied 3 NY3d 709 [2004]), we find no error in the court's refusal to charge thelesser included offense (see People vBarringer, 54 AD3d 442, 444 [2008]).
Mercure, Peters, Carpinello and Kavanagh, JJ., concur. Ordered that the judgment is affirmed.