Judgment reversed, on the law, and new trial granted. The findings of fact below are affirmed.
Defendant was tried for burglary in the third degree. Under the evidence adduced at the trial it could have been proper for the jury to acquit him of this crime but find him guilty of criminal trespass in the second degree. Under the circumstances, it was error to refuse the request for a charge on criminal trespass in the second degree (People v. Mussenden,
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