found the appellant guilty of possession of burglar’s tools, attempted criminal trespass in the second degree and attempted petit larceny. He was sentenced to concurrent terms of imprisonment. At sentencing the appellant requested that the sentences imposed run concurrent with the approximately nine months he owed on parole. The trial court declined, stating that such was not within its power to do. While it is clear that the People proved beyond a reasonable doubt appellant’s guilt of attempted criminal trespass in the second degree and possession of burglar’s tools, there is no basis in the record before this court for the attempted petit larceny conviction. The Court of Appeals stated in
People v Bracey ( 41 NY2d 296 , 300-301, mots for rearg or reconsideration den 41 NY2d 1010 ) that in order to sustain a conviction for an attempt “it must first be established that the defendant acted with a specific intent; that is that he intended to commit a specific crime (see, e.g.,
People v Kane, 161 NY 380 ). ‘It is not enough to show that the defendant intended to do some unspecified criminal act’ (La Fave & Scott, Criminal Law, § 59, p 429) * * * The question then is whether the jury, considering the act and all the surrounding circumstances, could conclude that there was no reasonable doubt that [the appellant acted with an intent to commit petit larceny]” (see, also,
People v Castillo, 47 NY2d 270 ). In
People v Bracey (supra, p 297), the evidence adduced at trial established that the two defendants entered a stationery store and “ ‘looked around’ ”. One defendant then bought two cents’ worth of candy and the two defendants left. After leaving the store and disappearing up the street, the two defendants “ ‘came back again’ ” (p 297), turned around and went back up the street toward a green Pontiac which had no license plate. One defendant entered the car, handed the other defendant a white canvas shoulder bag, drove off, made a U-turn in front of the store and parked nearby while the other defendant approached the store with the white canvas bag. Just as the defendant with the canvas bag was entering the store, the police, who had been called in the meantime, arrived. The canvas bag was searched and a loaded pellet pistol which resembled a .38 caliber revolver was recovered. Defendants appealed after being convicted of attempted robbery and argued that since one defendant’s entry into the store with the gun was equally consistent with an intent to assault or menace, it could not be said that the intent to commit robbery had been established beyond a reasonable doubt. This argument was rejected by the Court of Appeals on the basis that the store owner’s testimony, that he had no previous contact with either of the defendants and had done nothing which could provoke an assault, discounted the possibility that the defendants intended a personal assault or menace and, further, that under the circumstances the jury would have to resort to sheer speculation to find such intent. In the case at bar, however, there were no circumstances which discounted any of the numerous inferences with respect to the intentions of the appellant at the time of the attempted entry and the jury would have had to resort to sheer speculation to find that the appellant intended to commit petit larceny. Therefore, the attempted petit larceny conviction must be reversed. Subdivision 1 of section 70.25 of the Penal Law provides that “when a person who is subject to any undischarged term of imprisonment imposed at a previous time by a court of this state is sentenced to an additional term of imprisonment, the sentence or sentences imposed by the court shall run either concurrently or consecutively with respect to each other and the undischarged term or terms in such manner as the court directs”. Clearly, the trial court was under the mistaken notion that it had no authority to impose a concurrent term with respect to the appellant’s time owed on parole when, in fact, it did have such authority. In view of this fact and the reversal of the conviction for attempted petit larceny, the case is remitted to the trial court for resentencing. Titone, J. P., O’Connor, Weinstein and Rubin, JJ., concur.