Opinion
July 10, 1967
Judgment of the Supreme Court, Queens County, rendered March 18, 1964, modified, on the law, (1) by striking out the provisions convicting defendant of burglary in the third degree and the sentence imposed therefor; (2) by severing the count in the indictment charging the commission of such crime; and (3) by granting a new trial upon such count. As so modified, the judgment is affirmed. Under the circumstances of this case it was error for the court to charge that going through a window, that has glass missing, with a criminal intent is a breaking and entering within the burglary statutes ( People v. Toland, 217 N.Y. 187, 191; People v. Viola, 264 App. Div. 38; cf. 12 C.J.S. Burglary, §§ 3, 7; 2 Wharton's Criminal Law, §§ 973, 983 [12th ed. 1932]). It was further error to refuse the request for a charge on unlawful entry ( People v. Mussenden, 308 N.Y. 558; Code Crim. Pro., § 445). Beldock, P.J., Brennan, Hopkins, Benjamin and Nolan, JJ., concur.