Opinion
April 19, 1962
Judgment of conviction unanimously reversed, on the law and on the facts, the information dismissed and the defendant discharged from custody. The conviction, following a trial, was for unlawful possession of burglar's instruments and for malicious injury to property (Penal Law, §§ 408, 1425). The conviction rests upon testimony of an officer that the defendant was observed standing alongside the smashed window of a parked automobile, that his hands were dirty and blood smeared, and that he had in his pockets two small slightly flattened balls of tinfoil. Defendant on being questioned by an officer on the scene, denied that he broke the window and said that he got the blood on his hands in a fight. He further said that the tinfoil was "nothing". There was, however, testimony by an officer based on his experience as such and on his experience in prior years as an auto mechanic, that the tinfoil was adaptable for unlawfully "jumping" an ignition switch in order to start a car. The People failed, however, to establish the defendant's guilt of the crimes beyond a reasonable doubt. (See People v. Perez, 7 A.D.2d 633.)
Concur — Botein, P.J., Breitel, Rabin, McNally and Eager, JJ.