Appellate Division of the Supreme Court of the State of New York December 5, 2012 (People v. Kenny)

Contrary to the People’s contention, the defendant’s contention that the Supreme Court erred in refusing to charge burglary in the third degree as a lesser-included offense of burglary in the second degree is preserved for appellate review (see CPL 470.05 [2]). We agree with the People, however, that the defendant’s contention is without merit.