| People v Zokari |
| 2009 NY Slip Op 09396 [68 AD3d 578] |
| December 17, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Mohamed Zokari, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Emily C. Lee of counsel), forrespondent.
Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered October 12,2007, convicting defendant, after a jury trial, of burglary in the third degree and resisting arrest,and sentencing him, as a second felony offender, to an aggregate term of 2¼ to 4½years, unanimously affirmed.
The court properly declined to submit criminal trespass in the third degree as a lesserincluded offense, since there was no reasonable view of the evidence, viewed most favorably todefendant, that he entered a store without criminal intent and only subsequently formed an intentto steal (see People v Warfield, 6AD3d 218 [2004], lv denied 3 NY3d 650 [2004]; People v Mauricio, 215AD2d 326 [1995], lv denied 86 NY2d 738 [1995]). Although there may be a disputeabout how soon after entering a Duane Reade defendant began to steal 103 packets of gum, thesecurity guard's testimony that defendant began stealing the gum shortly after entering was notdisputed. Also undisputed was the prosecution's evidence that defendant recently had beenexcluded, by way of a trespass notice issued to him at the same store, from all Duane Readestores and that, five months before that notice, he received such a notice at another Duane Readestore. To convict defendant of trespass rather than burglary, the jury would have had to find thatalthough defendant had been so excluded recently and repeatedly, he nonetheless selected theDuane Reade store as a place to engage in shopping, browsing or some other unclear butinnocent activity, that he happened to be carrying a black plastic garbage bag for some innocentreason, and that it may not have been until shortly after he entered that he suddenly formed thelarcenous intent that led him to fill the bag with gum. A reasonable view of the evidence is not[*2]one at war with common sense; there was no evidence thatreasonably might suggest that defendant did not enter the store with the intent to commit a crime.Concur—Tom, J.P., Andrias, Saxe, McGuire and Manzanet-Daniels, JJ.