Decided December 15, 2005

People v Devonish, 17 AD3d 111, reversed.

APPEARANCES OF COUNSEL

Legal Aid Society, New York City (Jeffrey I. Richman of counsel), for appellant.

Robert M. Morgenthau, District Attorney, New York City (Sandra E. Cavazos of counsel), for respondent.

Memorandum.

The order of the Appellate Division should be reversed and a new trial ordered. [*2]

Defendant was convicted of burglary in the second degree after he was found inside a locked church building with a bag containing the kinds of tools commonly used by burglars. A witness for the People, a general contractor for the church, testified that he stored his tools in the church basement and that one of the tools found in defendant's possession was his for "sure," and the others might have been. Viewing the evidence in the light most favorable to defendant (see People v Discala, 45 NY2d 38, 42 [1978]), the jury was entitled to infer that defendant did not bring the tools with him to the church, and thus that the evidence failed to show that he had criminal intent at the time of entry (see People v Scarborough, 49 NY2d 364, 373 [1980]). It was error to refuse defendant's request that the jury be charged with the lesser included offense of criminal trespass in the second degree (CPL 300.50).

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Graffeo, Read and R.S. Smith concur in memorandum.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order reversed, etc.