People v. Santana

Judgment, Supreme Court, Bronx County (David Stadtmauer, J.), rendered May 12, 1989, convicting defendant after a jury trial of burglary in the second degree and petit larceny, and sentencing him to an indeterminate term of imprisonment of three to six years and a concurrent one year term, respectively, unanimously affirmed, and the case remitted for proceedings pursuant to CPL 460.50.

The People’s evidence at trial showed that after the occupants of a house heard noises, defendant was observed carrying a bag of clothing as he fled the second floor of the house toward the roof of the neighboring house. He was arrested by the police who discovered him hiding in the basement of the second building. Defendant testified that he entered the first house to escape people who were chasing him in connection with an automobile accident and denied taking the bag of clothing.

In its charge, the court told the jury that a person is guilty of burglary in the second degree when he "knowingly enters or remains in a building with the intent at the time to commit a crime.” On appeal defendant argues that the court’s charge deprived him of his defense.

Defendant’s claim, however, is unpreserved, and were we to reach it in the interest of justice we would find the claim to be without merit. Unlike the accused in People v Gaines ( 74 NY2d 358 ), defendant did not admit committing a crime within the premises as an afterthought to the unlawful entry. Moreover, there is no likelihood that defendant was found *300 guilty of burglary even though he was guilty of no more than a simple trespass. The case was presented on the theory that defendant had the intent to commit a crime when he entered the building, and there is no reasonable view of the evidence that defendant had no intent to commit a crime when he entered the first house, but then decided to commit a larceny (People v Mongen, 157 AD2d 82, 87 , appeal dismissed 76 NY2d 1015 ). Concur—Sullivan, J. P., Rosenberger, Kupferman, Asch and Kassal, JJ.