
    The People of the State of New York, Respondent, v Thomas Porter, Appellant.
   Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered January 27, 1976, convicting him of burglary in the second degree, upon a jury verdict, and imposing sentence. (The indictment also charged defendant with criminal possession of stolen property in the second degree. The court submitted that count to the jury as criminal possession of stolen property in the third degree, but no verdict was returned on the said count as the jury had been instructed not to consider that count in the event that it found the defendant guilty of burglary.) Judgment reversed, on the fact, the count of the indictment charging defendant with burglary in the second degree dismissed, and, as a matter of discretion in the interest of justice, new trial ordered as to the charge of criminal possession of stolen property in the third degree (see CPL 40.30, subd 3). Defendant was seen at 1933 Union Street, Brooklyn, New York, carrying certain items. Items of a similar nature had been reported missing from an apartment which had been burglarized in the said building. In our view the evidence is insufficient to establish that defendant had burglarized the apartment in question, since it does not establish that the defendant actually entered or had been in the burglarized apartment (see People v Smith, 39 AD2d 855). Latham, Acting P. J., Margett, Suozzi and Mollen, JJ., concur.  