Opinion
November 15, 1985
Appeal from the Orleans County Court, Miles, J.
Present — Dillon, P.J., Doerr, Denman, Boomer and Pine, JJ.
Judgment unanimously modified, on the law, and, as modified, affirmed, in accordance with the following memorandum: Defendant was convicted of burglary in the second degree and criminal mischief in the fourth degree. On review of the record, we find insufficient proof of "intent to commit a crime therein" (Penal Law § 140.25). The evidence does establish that the lesser included crime of criminal trespass in the second degree, Penal Law § 140.15, was committed. We reduce defendant's conviction on the first count of the indictment to criminal trespass in the second degree and affirm his conviction of criminal mischief. Since he was sentenced concurrently on both crimes and has already served more than the maximum which can be imposed for criminal trespass in the second degree, resentencing is not required.