Opinion
October 26, 1942.
Judgment of the County Court, Kings County, convicting defendant of the crimes of burglary in the second degree and petit larceny, reversed on the law and the facts and a new trial ordered. Although the proof presented was sufficient to convict the defendant of the crime of unlawful entry, it does not support his conviction of burglary in the second degree. The ultimate facts from which it must be inferred that defendant "broke" into the apartment by opening a closed or partially closed window were not satisfactorily established. The court erred in charging the jury that the letter written by the defendant to the District Attorney might be considered as a confession of burglary. Lazansky, P.J., Hagarty, Johnston, Taylor and Close, JJ., concur.