The PEOPLE of the State of New York, Respondent,

Robert Lee BESS, Appellant
Supreme Court, Appellate Division,
Third Department
107 A.D.2d 844 (1985)


 Appeal from a judgment of the County Court of Broome County, rendered February 25, 1983, upon a verdict convicting defendant of the crime of burglary in the third degree.

 At 2:00 A.M. on November 25, 1982, Thanksgiving Day, a security guard at the New York State Building Annex in the City of Binghamton heard the sound of breaking glass coming from the building's first floor cafeteria.  Investigation uncovered [p. 845] defendant crouched on a windowsill behind one of several food and beverage dispensing machines located in the cafeteria.  When told to "hold it where he was at", defendant responded by smashing the window in front of him and diving through it to a loading ramp below, where he was then apprehended by the guard.  At that point, as defendant was rising to his feet, something struck the wooden loading ramp, making a loud noise.  A flashlight search made by the guard before re-entering the building with defendant revealed a "cold chisel", a tool used to cut the heads off bolts, lying on the ramp.  Unlike tools utilized by State workers and stamped with the letters "O.G.S." (Office of General Services), the chisel bore no such stamp.

 As part of the People's case, the prosecution read to the jury portions of defendant's Grand Jury testimony wherein defendant explained he had entered the building to avoid being pursued by three would-be muggers, one of whom was armed;  that testimony also described the route along which he had proceeded. This explanation was followed by the testimony of a Binghamton police officer that, at the time defendant was ostensibly being chased, the officer was patrolling that very route and never saw defendant or his alleged pursuers. The defense rested without presenting evidence.

 Initially, defendant maintains that his conviction should be reversed in the interest of justice because the trial court's charge was erroneous.  The court informed the jury as to the elements of both burglary in the third degree and the lesser included offense of criminal trespass in the third degree. Instruction was also given as to the defense of justification, but with the admonition that this defense was merely to be considered with respect to the criminal trespass charge and then only if the jury first acquitted defendant of burglary.  It is claimed that justification was also a defense to the burglary charge and that failure to so advise the jury was error.  In parallel circumstances, the Court of Appeals found in People v. Almodovar, 62 N.Y.2d 126, 476 N.Y.S.2d 95, 464 N.E.2d 463, that the justification defense was not germane to a jury's consideration of a charge of criminal possession of a weapon, stating:
* * * a person either possesses a weapon lawfully or he does not and he may not avoid the criminal charge [of possession of a weapon in the second degree] by claiming that he possessed the weapon for his protection.  Justification may excuse otherwise unlawful use of the weapon but it is difficult to imagine circumstances where it could excuse unlawful possession of it (citation omitted) (id., 62 N.Y.2d at 130, 476 N.Y.S.2d 95, 464 N.E.2d 463).
 The same is true with respect to the burglary charge at issue;  defendant either entered or remained in the building intending to commit a crime therein or was lacking that guilty [p. 846] intent.  Consequently, even if defendant had timely objected to the alleged error, thereby preserving the issue for review, the trial court was not obliged to instruct that justification was a defense to the burglary charge.

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 We have considered defendant's other arguments and find them to be without merit.