
    The People of the State of New York, Respondent, v. Frank Gastiaburo, Appellant.
   Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered August 7, 1963 after a jury trial, convicting him of burglary in the third degree and possession of burglar’s instruments as a felony, and imposing sentence upon him as a second felony offender. Judgment affirmed. Section 408 of the Penal Law makes it a crime to have in one’s possession any implement commonly used for the commission of a larceny under circumstances evincing an intent to use the implement in the commission of a crime. In this ease the implements are toothpicks. Defendant’s statement to the detective shows clearly that the toothpicks were used to prevent the owner from unlocking his apartment door while the larceny was being committed. Furthermore, the statement is couched in terms implying the use of toothpicks by the defendant as a common practice to aid in the commission of a larceny. Christ, Acting P. J., Hill, Rabin, Hopkins and Benjamin, JJ., concur.  