Opinion
October 3, 1989
Appeal from the Supreme Court, New York County (Clifford Scott, J.).
Attempted third degree burglary is a class E felony (Penal Law § 110.05; § 140.20) that carries a maximum term of four years (Penal Law § 70.00 [e]; § 70.06 [3] [e]). Since the sentencing court erroneously treated this count as a class D felony, we vacate the sentence it imposed on this court and resentence defendant to a term of 2 to 4 years, the maximum permitted under the law.
Defendant's contention that the evidence was insufficient as a matter of law is without merit. Especially compelling was the plaster dust on the screwdriver found in defendant's possession at the time of his arrest, indicating that it was he who had pried the mailboxes from the wall of the building he was observed entering and then immediately leaving by the police at 5:30 A.M. Defendant argues that he could not have caused this damage within the four-second interval he was observed to be inside the building, but we do not think the inference too tenuous that he had been at the site, committing the burglary, before the police arrived.
We have reviewed defendant's other contentions and find them without merit.
Concur — Murphy, P.J., Sullivan, Asch, Rosenberger and Wallach, JJ.