People v. Polanco

172 A.D.2d 276, 568 N.Y.S.2d 99, 1991 N.Y. App. Div. LEXIS 4575

Opinion

Judgment, Supreme Court, New York County (Allen Alpert, J.), rendered May 12, 1988, convicting defendant of two counts of burglary in the third degree and sentencing him, as a predicate felon, to concurrent terms of imprisonment of from three to six years, unanimously affirmed.

Defendant was convicted of burglary on evidence that he stole soda from a pushcart stored in a Manhattan garage. On appeal, he argues that the People, by failing to call the owner of the cart to testify at trial, did not establish a larceny, and consequently, had not proven defendant’s intent to commit a crime as an element of burglary. The garage attendant, however, did testify, and he qualified as an "owner” within the meaning of Penal Law § 155.00 (5). His testimony that defendant was not authorized to remove the sodas was consequently sufficient to prove larcenous intent. Concur—Sullivan, J. P., Wallach, Asch and Smith, JJ.