Opinion
May 27, 1988
Appeal from the Onondaga County Court, Cunningham, J.
Present — Denman, J.P., Green, Pine, Balio and Davis, JJ.
Judgment unanimously modified on the law and as modified affirmed, in accordance with the following memorandum: Defendant's conviction for burglary in the third degree must be reversed because it is not supported by legally sufficient evidence (see, People v Bleakley, 69 N.Y.2d 490, 495) and that count of the indictment must be dismissed. Viewing the evidence, as we must, in a light most favorable to the People and giving them the benefit of every reasonable inference to be drawn therefrom (see, People v Way, 59 N.Y.2d 361, 365; People v Benzinger, 36 N.Y.2d 29, 32), we conclude that, as a matter of law, the trial evidence failed to satisfy the proof and burden requirements for every element of the crime charged (see, People v Bleakley, supra). Specifically, our search of the record reveals a lack of evidence that the building when entered by defendant was not "open to the public." When property is "open to the public" at the time of the entry, the accused is presumed to have a license and privilege to be present. In such case, the People have the burden of proving that a lawful order excluding defendant from the premises issued, that the order was personally communicated to defendant by a person authorized to make the order, and that defendant defied the order (Penal Law § 140.00; People v Leonard, 62 N.Y.2d 404, 408). This the People failed to do. Whether a building is "open to the public" is ordinarily a question for resolution by the trier of the fact (see, e.g., People v Taylor, 114 Misc.2d 680, 683-684). Here, however, the evidence is insufficient to support the finding that the building was not "open to the public" at the time of defendant's entry.