People v. Torres

Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered May 22, 1974, convicting him of burglary in the third degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law and the facts, by reducing the conviction of burglary in the third degree to one of criminal trespass in the second degree, and vacating the sentence imposed thereon. As so modified, judgment affirmed and case remanded to Criminal Term for resentence. The proof of burglary in the third degree was not sufficient (see *641Penal Law, § 140.20; People v Orr, 270 NY 193; People v Seaman, 21 AD2d 907; People v Samuel, 20 AD2d 919). However, since each and every element of the lesser inclusory offense of criminal trespass in the second degree (Penal Law, § 140.15) has been established beyond a reasonable doubt, the judgment has been modified accordingly (see CPL 470.15, subd 2, par [a]). The other contentions raised by the defendant have been considered and found to be without merit. Rabin, Acting P. J., Shapiro, Titone and O’Con-nor, JJ., concur.