Opinion
March 8, 1943.
Present — Close, P.J., Hagarty, Carswell, Taylor and Lewis, JJ.
Motion by appellant to resettle order. The motion will be treated as an application for reargument. Motion for reargument granted. On reargument, the decision of this court handed down on October 26, 1942 [ 265 App. Div. 840], is amended to read as follows: Judgment of the County Court, Kings County, convicting defendant of the crime of burglary in the second degree and of petit larceny, and sentencing him to State prison for a term of thirty years to life as a fourth offender, modified on the law and the facts, by convicting defendant of the crime of unlawful entry, under section 405 of the Penal Law, and by sentencing him to serve an indeterminate term in the penitentiary of the city of New York. As thus modified, the judgment is unanimously affirmed. The proof presented was legally insufficient to show defendant's guilt of the crime charged. The ultimate facts from which it must be inferred that defendant "broke" into the apartment by opening a closed or partially closed window were not satisfactorily established. The court also erred in charging the jury that the letter written by the defendant to the District Attorney might be considered as a confession of burglary. However, in our opinion the proof adduced was sufficient to establish defendant's guilt of the crime of unlawful entry, a misdemeanor, under section 405 of the Penal Law. The judgment of conviction is modified accordingly. (Code Crim. Pro. § 543, subd. 2.)