Opinion
December 10, 1973
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered February 14, 1973, convicting him of assault in the second degree, after a nonjury trial, and sentencing him to probation for five years. Judgment reversed, on the law and the facts and as a matter of discretion in the interests of justice, and indictment dismissed. In our view the evidence failed to establish guilt beyond a reasonable doubt. The testimony as to how the incident began was extremely equivocal and it cannot be concluded beyond a reasonable doubt that appellant was the aggressor. A finding that appellant and his codefendants were the aggressors is inconsistent with the fact that they called the police and remained on the scene until their arrival. This, coupled with the fact that the complainant pleaded guilty to possession of a pistol during the incident, indicates that the People failed to meet their burden of proving guilt beyond a reasonable doubt. Latham, Acting P.J., Shapiro, Gulotta, Christ and Benjamin, JJ., concur.