Opinion
March 26, 1962
Appeal by defendant from a judgment of the County Court, Nassau County, rendered May 19, 1961, after a jury trial, convicting him of burglary in the third degree, on two counts: (1) that defendant broke and entered a certain dwelling house with intent to commit the crime of larceny; and (2) that defendant, being in the said dwelling house and having committed the crime of larceny therein, broke out of said house; and, on the first count, sentencing him, as a second felony offender, to serve a term of 7 1/2 to 15 years, and on the second count, suspending sentence. Judgment modified on the law and the facts: (1) by striking out so much thereof as convicts defendant on the second count of the indictment; and (2) by dismissing said second count. As so modified, the judgment is affirmed. In our opinion, defendant's guilt under the first count was established beyond a reasonable doubt. There was ample proof to sustain the finding, implicit in the jury's verdict, that he broke into the premises and that he did so with intent to commit the crime of larceny (cf. People ex rel. Stevens v. Jackson, 283 App. Div. 3, 6-7). We are also of the opinion that the record sufficiently established that the police officer, in arresting defendant, had probable cause to do so (cf. Draper v. United States, 358 U.S. 307) and that the subsequent search and seizure were therefore lawful (cf. United States v. Di Re, 332 U.S. 581). While we do not approve the comments of the prosecutor during his summation, under all the circumstances they do not require reversal (Code Crim. Pro., § 542). Neither is reversal required by reason of alleged errors in the charge, to which no exceptions were taken, in view of the overwhelming proof of defendant's guilt under the first count of the indictment. However, defendant's conviction under the second count of the indictment may not be sustained. Such conviction is not supported by the evidence adduced; we find no proof in the record that defendant broke out of the premises as alleged in the indictment (cf. People v. Krevoff, 11 A.D.2d 1053). We have considered defendant's other contentions and find them untenable. Beldock, P.J., Kleinfeld, Brennan, Rabin and Hopkins, JJ., concur.