People v. Long , 338 N.Y.S.2d 452 ( 1972 )

Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered January 27, 1971, convicting him of burglary in the third degree, upon a jury verdict, and sentencing him to an indeterminate term of imprisonment not to exceed seven years. Judgment reversed, on the law, and new trial granted. The findings of fact below aré affirmed. Defendant was tried for burglary'" in the third degree. Under the evidence adduced at the trial it could have been proper for the jury to acquit him of this crime but find him guilty of criminal trespass in the second degree. Under the circumstances, it was error to refuse the request for a charge on criminal trespass in the second degree (People v. Mussenden, 308 N. Y. 558; CPL 300.50). Shapiro, Acting P. J., Gulotta, Christ, Brennan and Benjamin, JJ., concur.