
    The People of the State of New York, Respondent, v. Ralph Tacardon, Appellant.
   Judgment, Supreme Court, New York County, entered on April 6, 1971, convicting defendant, after trial before Schweitzer, J. and a jury, of burglary in the third degree and grand larceny in the first degree, and sentencing defendant, as a multiple felony offender, to concurrent terms of imprisonment of not less than five nor more than eight years, unanimously modified, on the law, to the extent of vacating the conviction for burglary and the cause remanded for resentencing pursuant to GPL 470.20 (subd. 3). The record is devoid of proof that defendant opened the window to effect entry into the apartment (see former Penal Law, § 404). The element of breaking was not made out and accordingly the evidence to sustain the conviction for burglary is insufficient. (People v. Wissler, 28 A D 2d 918; People v. Williams, 29 A D 2d 780; People v. Dornblut, 24 A D 2d 639; People v. Owens, 20 A D 2d 900; People v. Krevoff, 11 A D 2d 1053.) We have examined the other assignments of error and find them to be without merit. Concur — McGivern, J. P., Kupferman, McNally, Capozzoli and Macken, JJ.  