People v. Walaski , 136 A.D.2d 908 ( 1988 )

Judgment unanimously affirmed. Memorandum: There is no merit to defendant’s contention that proof of intent to commit a crime in the premises he had broken into was legally insufficient and, therefore, he should have been convicted only of criminal trespass rather than burglary. The jury was instructed that it could consider burglary as charged in the indictment or the lesser included crime of criminal trespass, and the issue of intent was properly left to the jury to resolve (cf., People v Henderson, 41 NY2d 233). (Appeal from judgment of Cattaraugus County Court, Kelly, J.—burglary, third degree.) Present—Dillon, P. J., Green, Pine, Balio and Lawton, JJ.