Opinion
February 20, 1967
Judgment of the County Court, Suffolk County, rendered April 15, 1966, convicting defendant of grand larceny in the second degree, upon a jury verdict, and imposing sentence, reversed, on the law and the facts, and indictment dismissed. Defendant's guilt was not established beyond a reasonable doubt. The theory of the prosecution was that he appropriated two radios from the premises of his employer. Defendant insisted that he had taken the radios from the trash after they had been discarded. The People's proof on this point, since it was circumstantial in nature, had to be of such a character that, if true, would exclude to a moral certainty every hypothesis save that of guilt ( People v. Weiss, 290 N.Y. 160, 163) and be inconsistent with that of innocense ( People v. Fitzgerald, 156 N.Y. 253, 258). The proof did not measure up to these standards. While there was testimony as to the procedures generally followed by the employer with regard to the discarding of radios, the People were unable to offer proof with respect to the procedures used at the time in question. Christ, Acting P.J., Brennan, Hopkins, Benjamin and Munder, JJ., concur.