Opinion
May 11, 1970
Appeal by defendants from two judgments of the Supreme Court, Queens County, rendered December 8, 1966 as to defendant Lightbourne and December 16, 1966 as to defendant Sheppard, convicting them of burglary in the third degree, upon a jury verdict, and imposing sentence. Judgments reversed, on the law and the facts, and indictment dismissed. In our opinion, the evidence was insufficient to warrant a finding of guilt beyond a reasonable doubt that the entry into the apartment was made with intent to commit a crime (cf. People v. Cleague, 22 N.Y.2d 363, 366; People v. Taddio, 292 N.Y. 488, 489; People v. Orr, 270 N.Y. 193, 196; People v. Seaman, 21 A.D.2d 907). If we were not dismissing the indictment, a new trial would be required because of improper references in the prosecutor's summation to defendants' failure to testify (cf. People v. Mirenda, 23 N.Y.2d 439, 457; People v. Christman, 23 N.Y.2d 429, 433; People v. Gould, 25 A.D.2d 160, 162). Christ, P.J., Rabin, Benjamin and Kleinfeld, JJ., concur; Martuscello, J., dissents and votes to affirm the judgments.