Opinion
December 1, 1997
Appeal from the Supreme Court, Kings County (Egitto, J.).
Ordered that the judgment is modified, on the law, by reversing the conviction of burglary in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
We find that the evidence was legally insufficient to establish the defendant's guilt of burglary in the second degree. The store in which the defendant committed the robbery was open to the public at the time of his entry. No evidence was presented to establish that the defendant defied a lawful order not to enter or remain. Thus, regardless of his intent, the defendant entered the store with license and privilege ( see, Penal Law § 140.00). Accordingly, we reverse the conviction of burglary in the second degree ( see, People v. Brown, 25 N.Y.2d 374, 376; see also, People v. Gaines, 74 N.Y.2d 358).
The defendant's remaining contentions are either unpreserved for appellate review or without merit.
Copertino, J. P., Sullivan, Pizzuto and Lerner, JJ., concur.