Opinion
December 7, 1981
Appeal by defendant from a judgment of the County Court, Nassau County (Fromer, J.), rendered June 18, 1980, convicting him of burglary in the second degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, indictment dismissed, and this case is remitted to the County Court, Nassau County, for the purpose of entering an order in its discretion pursuant to CPL 160.50. Viewing the facts most favorably to the People ( People v Benzinger, 36 N.Y.2d 29, 32), we find that the evidence was insufficient to support the conviction of the crime of burglary in the second degree. (See Penal Law, § 140.25.) Defendant had had free access to the subject apartment by permission of the tenant-occupant. No evidence was adduced to show that such permission was ever revoked. Therefore, it was never proven beyond a reasonable doubt that at the time of the alleged offense defendant knowingly entered into, or remained upon, the premises when he was not licensed or privileged to do so. (See Penal Law, § 140.00, subd 5; § 140.25.) Accordingly, the conviction must be reversed and the indictment dismissed. Hopkins, J.P., Mangano, Rabin and Cohalan, JJ., concur.