
    The People of the State of New York, Respondent, v Tony Benigno, Appellant.
   Appeal by defendant from a judgment of the Supreme Court, Queens County (Savarese, J.), rendered January 12, 1981, convicting him of burglary in the third degree, criminal mischief in the third degree, petit larceny, and criminal possession of stolen property in the third degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reducing the conviction of criminal mischief in the third degree to one of criminal mischief in the fourth degree, and by vacating the sentence imposed thereon. As so modified, judgment affirmed and matter remitted to the Supreme Court, Queens County, for resentencing on the reduced conviction and for further proceedings pursuant to CPL 460.50 (subd 5). Since no evidence was introduced showing that the defendant “damage[d] property * * * in an amount exceeding” $250, it was error for the trial court to have refused to charge criminal mischief in the fourth degree (Penal Law, § 145.00, subd 1) in lieu of criminal mischief in the third degree (Penal Law, § 145.05; see CPL 300.40), to which the People consented. Instead, the trial court charged both statutes, and the jury returned a verdict convicting defendant of criminal mischief in the third degree. Since the record does establish that there was intentional damage to property, the conviction of criminal mischief in the third degree should be modified by reducing it to a conviction of criminal mischief in the fourth degree. Defendant’s other contentions are without merit. Mollen, P. J., Lazer, O’Connor and Bracken, JJ., concur.  