Opinion
December 15, 1978
Appeal from the Yates County Court.
Present — Moule, J.P., Cardamone, Simons, Dillon and Hancock, Jr., JJ.
Judgment unanimously reversed, on the law and facts, and indictment dismissed. Memorandum: The evidence in this case is insufficient as a matter of law to establish the crime of grand larceny in the second degree. The circumstantial facts from which the prosecution sought to prove the defendant's larcenous intent (Penal Law, § 155.05, subd 1) were not established with certainty and, as offered, are as consistent with the hypothesis of defendant's innocence as they are with that of his guilt (see People v. Montanez, 41 N.Y.2d 53, 57, and cases cited therein). The only rational explanation for the verdict may be found in the improper admission into evidence, over objection, of the NYSIIS record of defendant's criminal history, coupled with the jury's application of the court's charge on the affirmative defense to larceny (Penal Law, § 155.15, subd 1) which tended to shift the burden of proof to the defendant on the critical issue of intent.