| People v Moore |
| 2009 NY Slip Op 01823 [60 AD3d 787] |
| March 10, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v William Moore, Appellant. |
—[*1] Daniel M. Donovan, Jr., District Attorney, Staten Island, N.Y. (Morrie I. Kleinbart andLauren-Brooke Eisen of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Collini,J.), rendered December 22, 2006, convicting him of burglary in the second degree and grandlarceny in the fourth degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is affirmed.
A defendant is not entitled to the submission of a lesser-included offense (see CPL1.20 [37]) unless, viewing the evidence in the light most favorable to the defendant (seePeople v Martin, 59 NY2d 704, 705 [1983]), there is a reasonable view of the evidenceunder which the jury could conclude that the defendant committed the lesser offense, but not thegreater (see People v Glover, 57 NY2d 61, 63 [1982]; People v Figueroa, 57 AD3d 1003[2008]; People v Mendez, 51 AD3d948, 949 [2008]). Where, however, such a conclusion would require the jury to resort tospeculation, a court does not err in refusing to submit the lesser-included offense (see Peoplev Butler, 84 NY2d 627, 631, 632 [1994]; People v Rivera, 2 AD3d 542, 543 [2003]). Here, the court did noterr in refusing the defendant's request to submit criminal trespass in the second degree as alesser-included offense of burglary in the second degree, inasmuch as there was no reasonableview of the evidence under which, at the time the defendant entered the complainants' house, hedid not intend to commit a crime inside (see Penal Law § 140.25 [2]; People vMendez, 51 AD3d at 949; People vMurdaugh, 38 AD3d 918, 919 [2007]; People v Archer, 25 AD3d 619 [2006]).
The challenged comments in the prosecutor's summation, to the extent that they were [*2]improper, were not unduly prejudicial and, thus, do not requirereversal (see People v Pinkney, 48AD3d 707, 708 [2008]; cf. Portuondo v Agard, 529 US 61 [2000]).
Under the particular circumstances of this case, the sentence imposed was not excessive(see People v Suitte, 90 AD2d 80 [1982]). Rivera, J.P., Fisher, Leventhal and Chambers,JJ., concur.