Opinion
February 10, 1975
Appeal by defendant from a judgment of the Supreme Court, Nassau County, rendered April 5, 1972, convicting him of criminally possessing property in the first degree, upon a jury verdict, and imposing sentence. Judgment affirmed. No opinion. The case is remitted to the Supreme Court, Nassau County, for proceedings to direct appellant to surrender himself to said court in order that execution of the judgment be commenced or resumed (CPL 460.50, subd. 5). Cohalan, Acting P.J., Christ, Brennan and Munder, JJ., concur; Shapiro, J., dissents and votes to reverse the judgment and dismiss the indictment, with the following memorandum: The evidence in this case was totally insufficient to warrant defendant's conviction. He was observed by police officers running from a house in whose adjacent garage the stolen automobile was parked. The uncontradicted evidence indicated that he had moved out of the house some two weeks prior to the theft of the car. Evidence of flight, without more, is only of slight value ( People v. Fiorentino, 197 N.Y. 560, 567). Such evidence of consciousness of guilt, while admissible to strengthen other evidence, is not in and of itself sufficient to warrant conviction ( People v. Leyra, 1 N.Y.2d 199). In this case, not only was there no other evidence of guilt, but the testimony as to flight clearly indicates that it may well have been the defendant's brother who fled the house. Accordingly, the judgment should be reversed and the indictment dismissed.