Opinion
May 31, 1949.
Appeal from County Court, Nassau County.
Judgment reversed on the law and new trial ordered. It was error to receive the evidence of the purchase of a television set by defendant more than three months after the robbery. The People established that the defendant had been gainfully employed for three years and that he had earned not less than $1,800 in one year and had earned almost $3,900 in 1947 up to the time of the purchase of the set. For the purchase, twenty-dollar bills as well as five- and ten-dollar bills were used. No twenty-dollar bills were stolen. There was no competent evidence from which the jury could say that the money with which the purchase was made was the product of the robbery. There was no proof here of the possession of cash in excess of salary such as was the case in People v. Connolly ( 253 N.Y. 330), or of poverty, as in Gordon v. People ( 33 N.Y. 501). There is nothing to indicate that defendant spent all that he earned. Neither was it shown what it cost him to live. Moreover, the number of twenty, ten- and five-dollar bills used in the purchase was not established. They bore no marks to establish identity with the bills which were stolen. To arrive at the conclusion that the twenty-dollar bills were in defendant's possession as a result of the robbery the jury had to infer that the defendant had done something with some of the bills which had been stolen and had received the twenty-dollar bills as a result. That is, inference upon an inference was necessary to reach the conclusion the twenty-dollar bills were the indirect product of the robbery rather than of his labor. The findings of fact implicit in the verdict of the jury would be affirmed had this evidence been excluded. Nolan, P J., Carswell, Adel, Sneed and MacCrate, JJ., concur.