Summary
In People v Gilligan (42 N.Y.2d 969, supra) the Court of Appeals upheld a jury verdict of attempted burglary in the third degree, stating as follows: "Defendant and another person were observed breaking in the front door of a liquor store in the early morning hours of Thursday, January 9, 1975. That defendant intended to commit a crime on entering the building — a necessary element of the crime of burglary in the third degree (Penal Law, § 140.20) — could be inferred beyond a reasonable doubt from the circumstances of the breaking.
Summary of this case from People v. BnesesOpinion
Submitted June 10, 1977
Decided July 14, 1977
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, GEORGE G. INGLEHART, JR., J.
Lawrence Katzman for appellant.
Lee Clary, District Attorney, for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
We reject defendant's contention that there was insufficient evidence to sustain the jury's verdict finding him guilty of the reduced charge of attempted burglary in the third degree. Defendant and another person were observed breaking in the front door of a liquor store in the early morning hours of Thursday, January 9, 1975. That defendant intended to commit a crime on entering the building — a necessary element of the crime of burglary in the third degree (Penal Law, § 140.20) — could be inferred beyond a reasonable doubt from the circumstances of the breaking. The defense rested at the close of the People's case; no evidence was introduced on the basis of which it could be contended that the breaking was for a lawful purpose. The conviction was for an attempt rather than the substantive crime presumably because none of the witnesses testified to having observed defendant inside the liquor store as a sequel to the unlawful breaking.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur.
Order affirmed in a memorandum.