PEOPLE v. CRUZ

In view of overwhelming evidence of guilt including the fact defendant was apprehended at the scene of the crime, in the course of commission of the burglary, the misconduct, if any, committed by the prosecutor in summation was harmless (People v Harris, 80 N.Y.2d 796; People v Bailey, 155 A.D.2d 262, lv denied 75 N.Y.2d 810).

We also conclude that no rational view of the evidence required submission to the jury of the crime of burglary in the third degree as a lesser included offense.

We have examined defendant's remaining contentions and find them to be without merit.

Concur — Sullivan, J.P., Rosenberger, Wallach, Ross and Rubin, JJ.