People v. Cobb

198 A.D.2d 128, 604 N.Y.S.2d 54

Opinion

—Order, Supreme Court, Bronx County (Antonio Brandveen, J.), entered July 8, 1991, which granted defendant’s motion to dismiss the indictments, unanimously affirmed. The appeal from the purported order of the same court rendered on the record January 31, 1991 is unanimously dismissed as superceded by the appeal from the order of July 8, 1991.

The trial court correctly held that the cooler defendant allegedly broke into to steal beer from was not a "building” within the definition of Penal Law § 140.00 (2). While the cooler may have been used for business purposes, there is no evidence that business was carried on "therein” (see, People v O’Keefe, 80 AD2d 923). The trial court also correctly determined that both the bolt cutter allegedly used by defendant and the lock alleged to have been cut were "critical to the defense”, and dismissal of the counts charging possession of burglar’s tools and criminal mischief in the fourth degree was the only appropriate remedy for the loss of this evidence (see, People v Nieves, 133 AD2d 234, 235, lv denied 70 NY2d 935). Concur — Carro, J. P., Ellerin, Wallach and Ross, JJ.