Opinion
November 18, 1993
Appeal from the Supreme Court, Bronx County (Antonio Brandveen, J.).
The trial court correctly held that the cooler defendant allegedly broke into to steal beer from was not a "building" within the definition of Penal Law § 140.00 (2). While the cooler may have been used for business purposes, there is no evidence that business was carried on "therein" (see, People v O'Keefe, 80 A.D.2d 923). The trial court also correctly determined that both the bolt cutter allegedly used by defendant and the lock alleged to have been cut were "critical to the defense", and dismissal of the counts charging possession of burglar's tools and criminal mischief in the fourth degree was the only appropriate remedy for the loss of this evidence (see, People v Nieves, 133 A.D.2d 234, 235, lv denied 70 N.Y.2d 935).
Concur — Carro, J.P., Ellerin, Wallach and Ross, JJ.