PEOPLE v. MITTEAGER, 44 N.Y.2d 927 (1978)

408 N.Y.S.2d 9, 379 N.E.2d 1139

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. TIMOTHY MITTEAGER, Appellant.

Court of Appeals of the State of New York.Argued April 28, 1978
Decided June 13, 1978

Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, J. COURTNEY McGROARTY, J.

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Nancy S. Hobbs and William E. Hellerstein for appellant.

Thomas R. Sullivan, District Attorney (George E. McVay of counsel), for respondent.

MEMORANDUM.

The order of the Appellate Division should be affirmed.

There was sufficient proof to support defendant’s conviction of attempted burglary in the third degree. Defendant and another individual were observed within five feet of the doorway of a business building then closed for the night and located in a rather desolate area of Staten Island. They fled as the police approached, then hid across the street beneath a nearby car and were quickly apprehended. The officers next checked and found evidence of a breaking of the door of the premises. Based on the foregoing, there was ample circumstantial evidence from which the trier of the fact could infer that defendant and the person accompanying him were attempting a burglary of the building. In addition, the enumerated evidence was adequately independent of that relating to the possessory crimes so that the conviction, rendered by the trial court sitting without a jury, was not tainted by proof concerning possession of burglar’s tools and unlawful possession of radio devices, the convictions for the latter of which

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were reversed by the Appellate Division (see People v Almestica, 42 N.Y.2d 222).

Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur in memorandum.

Order affirmed.