People v. Rosa

Per Curiam.

The judgment of conviction for violating section 1293-a of the Penal Law (unauthorized use of automobile) is modified on the law and the facts to the extent that the conviction is reduced to an attempt to violate the statute, and, as modified, is otherwise affirmed. The presence of the defendant in the stolen car, bis acf of sliding over from his point of entry on the passenger side to the driver side, the police officer’s prior observations, and the defendant’s false story, all constitute an attempt to commit the crime charged- People v, Orr (270 N. Y. 193) is distinguished.

The judgment of conviction for the crime of possessing burglar’s instruments (Penal Law, § 408) is reversed on the law and the facts and the charge is dismissed- The finding of two keys, neither of which was for the make of car involved, in the defendant’s pocket, does not establish, beyond a reasonable doubt, that the defendant possessed the keys with intent to commit a crime. The keys were not proven to be either false keys or master keys.

Inasmuch as the defendant has completed the sentence imposed, it would be superfluous to remand him for re sentence on the attempted violation of section 1293-a of the Penal Law.

Concur — Markowitz, J. P., Bofstadtfr. and Streit, JJ.