Santucci, J., concurs in part and dissents in part, and votes to modify the judgment, on the facts as a matter of discretion, in the interest of justice, by reducing the defendant’s conviction of burglary in the second degree to a conviction of criminal trespass in the second degree, and vacating the sentence imposed thereon, and as so modified, to affirm the judgment, with the following memorandum: I must respectfully dissent. I find the jury’s verdict to be based on legally insufficient evidence, and to be against the weight of the evidence. The defendant was indicted on one count of burglary in the second degree (see, Penal Law § 140.25), one count of criminal trespass in the second degree (Penal Law § 140.15), and one count of possession of burglar’s tools (Penal Law § 140.35).
A necessary element of the burglary count was "intent to commit a crime” within the premises illegally entered (Penal Law § 140.25). The complainant testified that the defendant was illegally within the glass-enclosed front porch area of her dwelling. While the complainant testified that the front door to the porch had been locked, she admitted that people had been going in and out of the door. Further, while certain objects on the front porch had been moved, none were taken and the complainant never saw the defendant touch them. After the defendant lifted the blinds over the window separating the porch from the rest of the house, the complainant’s husband confronted the defendant, who argued with the complainant’s husband and then fled. The complainant then called the police, who arrived and arrested the fleeing defendant. The defendant testified that he saw the complainant enter the house and knew that the complainant and her husband were home. He entered the porch and tapped on the interior window and door in order to gain their attention so that he could ask for a handout or an odd job. He tried to explain his purpose to the complainant’s husband and fled only after the complainant’s husband threatened his life. The arresting officer testified that he arrested the defendant and found a small Phillips-head screwdriver on the defendant’s person.
*745Although the defendant’s contention that the evidence was legally insufficient was unpreserved for appellate review (see, CPL 470.05 [2]; People v Udzinski, 146 AD2d 245), I find that the evidence, viewed in the light most favorable to the prosecution (see, People v Lewis, 64 NY2d 1111), is insufficient to establish beyond a reasonable doubt that the defendant possessed the requisite intent to commit a crime in the complainant’s home (see, People v Colon, 169 AD2d 835; People v Minor, 150 AD2d 182). While the defendant entered the complainant’s home illegally, and the jury could have found that he forced the porch door, the defendant did not flee immediately upon discovery. Nor did he in any way threaten the complainants. Instead, he attempted to speak with the complainant’s husband—an action not inconsistent with innocent intent. The defendant was not in possession of any stolen property, and although a screwdriver was found on his person by the arresting officers, the jury found that it was not a burglar’s tool and acquitted him of that charge.
The only other circumstantial evidence that could have given rise to an inference of intent was that the defendant lied to the arresting officers about his name. However, the defendant had a record of felony convictions, and could have had many reasons for concealing his identity, including simple fear (see, People v Moses, 63 NY2d 299, 308).
The evidence is, however, sufficient to support a conviction of criminal trespass in the second degree (see, Penal Law § 140.15). I would therefore reduce the defendant’s burglary conviction accordingly (see, People v Minor, supra). Since the defendant has already served the maximum term of imprisonment for a class A misdemeanor, I would not remit the matter for resentencing (see, People v Minor, supra).