The People of the State of New York, Respondent, v. Antonio Feliciano, Appellant

The People of the State of New York, Respondent, v Antonio Feliciano, Appellant. [680 NYS2d 79] [MAJORITY] Judgment, Supreme Court, New York County (Martin Rettinger, J.), rendered April 15, 1996, convicting defendant, after a jury trial, of attempted burglary in the third degree, and sentencing him, as a second felony offender, to a term of 2 to 4 years, unanimously affirmed. Since the fence in question was not, under the circumstances, part of a “building” (Penal Law § 140.00 [2]), the supplemental charge concerning the definition of a “building” was erroneous. However, such error was harmless in light of the overwhelming evidence of defendant’s guilt of attempted burglary of the actual building in question, including his being found in possession of bolt cutters while at the top of the fence and his statements to the police to the effect that he was going to “rob the place” and “take everything”, as well as the absence of evidence to support a verdict on an erroneous theory (see, People v Martinez, 83 NY2d 26, cert denied 511 US 1137). Concur— Tom, J. P., Mazzarelli, Andrias and Saxe, JJ.