IN RE: ORNEIL F.

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Supreme Court, Appellate Division, First Department, New York.

IN RE: ORNEIL F., A Person Alleged to be a Juvenile Delinquent, Appellant. Presentment Agency.

Decided: November 28, 2006

BUCKLEY, P.J., SAXE, WILLIAMS, SWEENY, MALONE, JJ. Howard M. Simms, New York, for appellant. Michael A. Cardozo, Corporation Counsel, New York (Jane L. Gordon of counsel), for presentment agency.

Order of disposition, Family Court, Bronx County (Monica Drinane, J.), entered on or about September 20, 2005, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination (Alma Cordova, J.) that appellant committed acts which, if committed by an adult, would constitute burglary in the third degree, criminal trespass in the third degree, and attempted petit larceny, and placed him in the custody of the Office of Children and Family Services for a period of 18 months, unanimously modified, on the law, to the extent of vacating the finding as to burglary in the third degree, dismissing that count of the petition and remanding for a new dispositional hearing, and otherwise affirmed, without costs.

 The court's finding as to criminal trespass and attempted petit larceny was based on legally sufficient evidence and was not against the weight of the evidence (People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).   The evidence established that, after being told to leave, appellant unlawfully remained upon real property that was enclosed by a fence.   The evidence also supports the conclusion that appellant attempted to steal a bicycle.

 However, the burglary finding was based on insufficient evidence because the fenced-in outdoor storage lot adjoining a store did not qualify as a “building” as defined by Penal Law § 140.00(2).   There was no evidence to support a conclusion that this storage lot resembled, or was analogous to, the roofed vestibule or entranceway described in People v. King, 61 N.Y.2d 550, 555, 475 N.Y.S.2d 260, 463 N.E.2d 601 [1984].