People v. Polanco

Judgment, Supreme Court, New York County (Allen Alpert, J.), rendered May 12, 1988, convicting defendant of two counts of burglary in the third *277degree and sentencing him, as a predicate felon, to concurrent terms of imprisonment of from three to six years, unanimously affirmed.

Defendant was convicted of burglary on evidence that he stole soda from a pushcart stored in a Manhattan garage. On appeal, he argues that the People, by failing to call the owner of the cart to testify at trial, did not establish a larceny, and consequently, had not proven defendant’s intent to commit a crime as an element of burglary. The garage attendant, however, did testify, and he qualified as an "owner” within the meaning of Penal Law § 155.00 (5). His testimony that defendant was not authorized to remove the sodas was consequently sufficient to prove larcenous intent. Concur—Sullivan, J. P., Wallach, Asch and Smith, JJ.