People v. Martinez

182 A.D.2d 835

Opinion

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Beldock, J.), rendered September 7, 1989, convicting him of burglary in the second degree and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is modified, on the law, by reducing the defendant’s conviction of burglary in the second degree to criminal trespass in the second degree, and vacating the sentence imposed thereon; as so modified, the judgment is affirmed.

We find that the evidence was insufficient to support the defendant’s conviction of burglary in the second degree, as there was no evidence from which the jury could conclude beyond a reasonable doubt that the defendant intended to commit a crime within the dwelling (see, People v Colon, 169 AD2d 835; People v Howard, 163 AD2d 533, People v Minor, 150 AD2d 182).

Because the evidence is legally insufficient to establish the critical element of the intent to commit a crime within the dwelling the defendant’s conviction for burglary in the second degree cannot stand and must be reduced to the lesser-included offense of criminal trespass in the second degree, which was proven. Since the defendant has already served the maximum sentence which could be imposed for criminal trespass in the second degree (see, Penal Law § 70.15 [1]), we do not remit the matter for resentencing.

We have considered the defendant’s remaining contentions and find them to be without merit. Bracken, J. P., Lawrence, Eiber and Santucci, JJ., concur.