PEOPLE v. MILEY

Defendant and his girlfriend were observed by the complainant's next-door neighbor as they removed a television, stereo and speakers, and other articles, in successive trips, from complainant's apartment. At one point, the girlfriend said to the neighbor, "That bitch owes me money, and I want my money, and we taken [sic] her stuff". The complainant testified that she owed defendant's girlfriend $12 for baby-sitting, but was waiting for her welfare check to pay off the debt. This testimony established defendant's guilt by legally sufficient evidence and beyond a reasonable doubt.

Defendant's contention that the trial court should have charged trespass as a lesser included offense was expressly waived at trial (CPL 300.50, [2]; People v. Green, 56 N.Y.2d 427, 430), and is unpreserved for review as a matter of law. (See, People v Buckley, 75 N.Y.2d 843.) In any event, the claim is without merit, as no reasonable view of the evidence supported the submission of trespass as a lesser included offense. (See, People v. Blim, 63 N.Y.2d 718, 721.) Defendant also failed to preserve for appellate review as a matter of law (CPL 470.05) any challenge to the complainant's testimony alluding to defendant's unauthorized presence in her premises on a prior occasion, and we decline to reach this claim in the interests of justice.

Concur — Kupferman, J.P., Ross, Rosenberger, Kassal and Smith, JJ.