Opinion
February 28, 1977
Appeal by defendant from a judgment of the County Court, Nassau County, rendered September 5, 1975, convicting him of attempted burglary in the third degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law and the facts, by reducing the conviction to one of trespass and vacating the sentence imposed. As so modified, judgment affirmed and case remitted to the County Court for resentence. The evidence that the defendant was attempting to unlawfully enter the supermarket with the intent to commit a crime therein was wholly circumstantial and insufficient, as a matter of law, to sustain the conviction. It cannot be said that the evidence "exclude[s] to a moral certainty every other hypothesis except that of the accused's guilt", or that "all of the circumstances [are] consistent with and point to the accused's guilt" (Richardson, Evidence [Prince, 10th ed], § 148). However, since the defendant took the stand and, in effect, admitted the commission of a trespass, we modify the judgment accordingly. We have considered the other contentions raised by defendant and find them to be without merit. Rabin, Acting P.J., Shapiro, Titone and O'Connor, JJ., concur.