| People v Roseborough |
| 2014 NY Slip Op 04348 [118 AD3d 1347] |
| June 13, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Steven B. Roseborough, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Jane I. Yoon of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Erin Tubbs of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (John L. DeMarco, J.),rendered April 14, 2010. The judgment convicted defendant, upon a jury verdict, ofburglary in the third degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of burglary in the third degree (Penal Law § 140.20). Contrary todefendant's contention, we conclude under the circumstances of this case that CountyCourt (McCarthy, J.), properly denied that part of defendant's motion seeking dismissalof the indictment pursuant to CPL 30.30 (see People v Freeman, 38 AD3d 1253, 1253 [2007], lvdenied 9 NY3d 875 [2007], reconsideration denied 10 NY3d 811 [2007]; People v Smith, 1 AD3d955, 956 [2003], lv denied 1 NY3d 634 [2004]). Viewing the evidence in thelight most favorable to defendant, as we must (see People v Martin, 59 NY2d704, 705 [1983]), we further conclude that County Court (DeMarco, J.), properly denieddefendant's request to charge criminal trespass in the third degree as a lesser includedoffense (Penal Law § 140.10). Criminal trespass in the third degree is alesser included offense of burglary in the third degree inasmuch as "it is impossible tocommit the greater offense without at the same time committing the lesser" (People vBlim, 63 NY2d 718, 720 [1984]; see People v Collier, 258 AD2d 891, 892[1999]). Nevertheless, the court properly denied defendant's request because, "[i]fdefendant's version of the events were believed, defendant would not be guilty of anycrime" (People v Sheldon, 262 AD2d 1060, 1061 [1999], lv denied 93NY2d 1045 [1999]). Thus, "under no reasonable view of the evidence could the juryhave found that defendant committed the lesser offense but not the greater"(Blim, 63 NY2d at 720). Finally, we conclude that the court did not abuse itsdiscretion in refusing to permit surrebuttal testimony from defendant's wife, part ofwhich concerned a collateral matter (see generally People v Petty, 7 NY3d 277, 287 [2006]), andthe other part of which constituted inadmissible hearsay (see generally People vBurwell, 159 AD2d 407, 408-409 [1990], lv denied 76 NY2d 785 [1990]).Present—Scudder, P.J., Fahey, Carni, Valentino and Whalen, JJ.