(dissenting in part). I would affirm the conviction of burglary in the second degree.
In my view there is no "reasonable view of the evidence which would support a finding that the defendant committed such lesser offense [criminal trespass in the first degree] but did not commit the greater [burglary in the second degree].” (CPL 300.50, subd 1.) For present purposes, the distinction between the two crimes is whether when defendant knowingly entered or remained unlawfully in the Gacconier apartment, he did so "with intent to commit a crime therein” (Penal Law, § 140.25). Concededly, defendant was engaged in the crime at least of unlawful imprisonment of Blanchard; his attorney asked the jury to convict him of that, and his attorney on appeal asks us to reduce his conviction of kidnapping of Blanchard to unlawful imprisonment. That unlawful imprisonment was a continuing crime. In the course of it, defendant took Blanchard, his prisoner, into the Gacconier apartment, into which he entered and remained unlawfully.
The connection between the imprisonment or kidnapping of Blanchard and the unlawful entry and remaining in the Gacconier apartment was direct and purposeful. Defendant unlawfully entered the apartment and took Blanchard into the apartment for the purpose of concealing himself and his prisoner from his pursuers. It was essential to the unlawful imprisonment for defendant to get himself and his prisoner into the apartment where his pursuers were not. Unlawful imprisonment involves restraining another person (Penal Law, § 135.10). Kidnapping involves abducting (Penal Law, § 135.20). Subdivision 1 of section 135.00 defines "restrain” another person to include interfering with his liberty "by moving him from one place to another, or by confining him * * * in a place to which he has been moved”. Subdivision 2 defines "abduct” another person to include "secreting or holding him in a place where he is not likely to be found”. The Gacconier apartment was the place to which defendant moved *497Blanchard and confined him. It was also the place where defendant was holding Blanchard "in a place where he is not likely to be found”.
Thus I see no reasonable view of the evidence which would support a finding that when defendant unlawfully entered and remained in the Gacconier apartment he did not do so "with intent to commit a crime therein”.
Sullivan and Lane, JJ., concur with Sandler, J.; Fein, J. P., and Silverman, J., dissent in part in an opinion by Silverman, J.
Judgment, Supreme Court, Bronx County, rendered on November 4, 1977, modified, on the law, to the extent of reversing the convictions for unlawful imprisonment in the first degree and burglary in the first degree and burglary in the second degree and remanding those charges to the trial court for further proceedings, and the judgment is otherwise affirmed.