People v. Tragn

449 N.Y.S.2d 923 (1982)

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Nature of the Case

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Facts

Seven defendants on trial and two others were indicted, for crimes of burglary in the third degree (first count) and attempted burglary in the third degree (second count), while acting in concert. Two members of the group drilled one hole through and one hole partially through the exterior storefront wall of the China Jade Company jewelry store. The holes were apparently purposefully placed on each side of a 3,000-pound safe, located directly within the premises and adjacent to the exterior wall. Tragni and Barrios, (D) long-time private garbage truck drivers, positioned their vehicles in front of the jewelry store and revved their motors in an attempt to shield the activity from public view and to mask the sounds of the drilling operation. Defendant Mazzocchi (D) acted as lookout. The four remaining Ds (all helpers on the garbage trucks, and ultimately acquitted) stood on the sidewalk nearby. The People (P) contend that, once the holes were drilled, something would be inserted through the openings and slipped around the safe so that it could be pulled through the wall and removed. Ds were being carefully watched by the police. Ds were apprehended when they began drilling the second hole. Ds were tried, and they all moved to dismiss the burglary count for legal insufficiency. Ds contend that no defendant physically entered the building at any time. P claims that at least one drill bit broke through the wall into the airspace of the premises and that the entry contemplated by the burglary statutes was accomplished at that point.