Opinion
September 22, 1998
Appeal from the Supreme Court, New York County (Martin Rettinger, J.)
Since the fence in question was not, under the circumstances, part of a "building" (Penal Law § 140.00), the supplemental charge concerning the definition of a "building" was erroneous. However, such error was harmless in light of the overwhelming evidence of defendant's guilt of attempted burglary of the actual building in question, including his being found in possession of bolt cutters while at the top of the fence and his statements to the police to the effect that he was going to "rob the place" and "take everything", as well as the absence of evidence to support a verdict on an erroneous theory ( see, People v. Martinez, 83 N.Y.2d 26, cert denied 511 U.S. 1137).
Concur — Tom, J. P., Mazzarelli, Andrias and Saxe, JJ.