Opinion
February 16, 2000
Appeal from Judgment of Oneida County Court, Donalty, J. — Burglary, 2nd Degree.
PRESENT: HAYES, J. P., WISNER, PIGOTT, JR., SCUDDER AND LAWTON, JJ.
Judgment unanimously modified on the law and as modified affirmed in accordance with the following Memorandum:
Defendant was convicted following a bench trial of burglary in the second degree (Penal Law § 140.25) and criminal mischief in the second degree (Penal Law § 145.10) arising from his forced entry into his fiancee's home. We reject defendant's contention that the evidence is legally insufficient to support the conviction of burglary in the second degree ( see, People v. Bleakley, 69 N.Y.2d 490, 495). "There was no evidence that defendant had permission to be in complainant's [house] at the time the crime was committed" ( People v. Sanders, 163 A.D.2d 852, lv denied 76 N.Y.2d 896; see, People v. Collier, 258 A.D.2d 891, 892). "Whether defendant was so intoxicated as to be unable to form the requisite intent presented issues of fact and credibility for the [trier of fact] to resolve" ( People v. Danaher, 115 A.D.2d 905, 906).
We conclude, however, that the conviction of criminal mischief in the second degree is not supported by legally sufficient evidence. The fiancee's "general approximation of the cost of repairing or replacing various property items" is insufficient to establish the amount of damage ( People v. Brantley, 186 A.D.2d 1036, lv denied 81 N.Y.2d 785; see, People v. Jackson, 168 A.D.2d 633, 634, lv denied 77 N.Y.2d 962). We thus modify the judgment by reducing the conviction of criminal mischief in the second degree to criminal mischief in the fourth degree (Penal Law § 145.00) and vacating the sentence imposed thereon. "However, the matter need not be remitted for resentencing on that count since the defendant has already served the maximum permissible sentence for that crime" ( People v. Jackson, supra, at 634).
The contentions of defendant with respect to the denial of his CPL 440.10 motion are not properly before us ( see, CPL 450.15). We have reviewed the contentions raised by defendant in his pro se supplemental brief and conclude that they are without merit.