People v. White

— Judgment unanimously modified on the law and as modified affirmed and matter remitted to Erie County Court for further proceedings, in accordance with the following memorandum: Defendant appeals from a judgment convicting him, after a bench trial, of burglary in the first degree, rape in the first degree, and sexual abuse in the first degree. He contends on appeal that the proof of burglary in the first degree (Penal Law § 140.30 [3]) was legally insufficient because there was no proof of actual possession of a dangerous instrument. We agree. Actual possession of a dangerous instrument is…