Opinion
November 15, 1989
Appeal from the Erie County Court, D'Amico, J.
Present — Denman, J.P., Boomer, Green, Pine and Davis, JJ.
Judgment unanimously modified on the law and as modified affirmed and matter remitted to Erie County Court for further proceedings, in accordance with the following memorandum: Defendant appeals from a judgment convicting him, after a bench trial, of burglary in the first degree, rape in the first degree, and sexual abuse in the first degree. He contends on appeal that the proof of burglary in the first degree (Penal Law § 140.30) was legally insufficient because there was no proof of actual possession of a dangerous instrument. We agree. Actual possession of a dangerous instrument is required for robbery in the first degree (Penal Law § 160.15; People v Pena, 50 N.Y.2d 400, rearg denied 51 N.Y.2d 770, cert denied 449 U.S. 1087), and these two statutes contain identical language with respect to threatening the use of a dangerous instrument. We reject the People's argument that we should distinguish between the robbery and burglary statutes in construing identical language and that we should follow People v Delgado ( 143 A.D.2d 1033, lv denied 73 N.Y.2d 854; see, e.g., People v Wilcox, 54 A.D.2d 801). Although the victim testified that defendant threatened her with a razor, she never saw one, nor was a razor later recovered (cf., People v Pena, supra). Thus, there was no valid line of reasoning and permissible inferences to lead a rational person to the conclusion that defendant had actual possession of a razor (see, People v Bleakley, 69 N.Y.2d 490, 495). The burglary conviction therefore is reduced to burglary in the third degree, the sentence thereon is vacated, and defendant is remanded to Erie County Court for resentencing on that count (see, e.g., People v Wilcox, 54 A.D.2d 801, supra).