Opinion
December 7, 1970
Appeal from an order and judgment (one paper) of the Supreme Court, Kings County, dated January 6, 1970, which adjudged appellant to be in contempt of court. Order and judgment reversed, on the law, and proceeding remitted to the Criminal Term for further proceedings not inconsistent herewith, without costs. On this motion to punish appellant for criminal contempt for failure to produce certain books and records of four named corporations, the People were required to prove appellant's guilt beyond a reasonable doubt ( People v. Shapolsky, 8 A.D.2d 122, 125; People ex rel. Valenti v. McCloskey, 8 A.D.2d 74, 83; Matter of Wegman's Sons, 40 App. Div. 632, 633). The Criminal Term's finding that the People proved "by a preponderance of the evidence" that appellant had the books and should produce them is insufficient to sustain the judgment. Moreover, we think the People's evidence was insufficient to show the existence of virtually all the books and records subpoenaed or appellant's ability to produce them, excepting only canceled checks, bank statements and checkbook stubs ( People v. Shapolsky, supra, p. 127). Christ, P.J., Munder, Latham, Kleinfeld and Brennan, JJ., concur.