People v. Casey , 667 N.Y.S.2d 374 ( 1997 )

—Appeal by the defendant from a judgment of the Supreme Court, Kings County (Egitto, J.), rendered November 9, 1995, convicting him of robbery in the first degree, criminal possession of a weapon in the second degree, criminal possession of stolen property in the third degree, and burglary in the second degree, upon a jury verdict, and imposing sentence.

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 [5]). Accordingly, we reverse the conviction of burglary in the second degree (see, People v Brown, 25 NY2d 374, 376; see also, People v Gaines, 74 NY2d 358).

The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Copertino, J. P., Sullivan, Pizzuto and Lemer, JJ., concur.