
    The People of the State of New York, Respondent, v Timothy Mitteager, Appellant.
   Appeal by defendant from a judgment of the Supreme Court, Richmond County, rendered October 4, 1974, convicting him of attempted burglary in the third degree, possession of burglar’s tools and unlawful possession of radio devices, after a nonjury trial, and imposing sentence. Judgment modified, on the law and the facts, by reversing the convictions of possession of burglar’s tools and unlawful possession of radio devices, and the sentences imposed thereon, and the said counts are dismissed. As so modified, judgment affirmed. Defendant is correct in his contention that there was insufficient proof to establish his possession, either actual or constructive, of the tire iron or of the radio device, especially in the light of the testimony of the People’s witness Jurkowski (see People v Diaz, 54 AD2d 543; People v Pesce, 18 AD2d 1092). Latham, Acting P. J., Margett, Suozzi and Mollen, JJ., concur.  