According to a Nassau County Grand Larceny Attorney, a defendant filed an appeal from a judgment of the County Court, Nassau County, rendered June 3, 1977, convicting him of attempted grand larceny in the third degree, after a nonjury trial, and imposing sentence. After hearing on the appeal, the Court ruled that judgment appealed from is reversed on the law.
Defendant was indicted for the crimes of grand larceny in the third degree and criminal possession of stolen property in the second degree. It was alleged that he had stolen certain property from a certain Company in Nassau County. Admittedly, the criminal defendant drove with a man named S to the store and waited in the car while S went inside. Fifteen minutes later S emerged from the store with an armful of clothing worth $500 and jumped into the car. They drove through the parking lot and turned onto Northern Boulevard, pursued by a radio patrol car. The officer in pursuit saw articles of clothing being thrown out of the window, which were recovered after defendant was apprehended.
A Nassau County Criminal Lawyer said the defendant contends that he was ignorant of S’s plan and when he saw what S had done he told him, as they drove away, to get rid of the clothing. The officer in pursuit estimated the speed of defendant’s vehicle at 65 to 70 miles per hour.
On these facts, the court convicted defendant of attempted grand larceny in the third degree. In the Court’s view, the judgment must be reversed because there is no basis in the evidence to support a finding that defendant had committed the crime of attempted larceny.
According to a Nassau County Robbery Attorney, the only issue in this case to be decided by the court was one of credibility between the police officer and the defendant. Once the trier of facts rejected defendant’s version of the incident, as it obviously did, the only possible view of the evidence was that defendant was guilty of the consummated crime. The trial court may consider the crime of attempt only in those cases where the issue is close.
In a similar case, the complaining witnesses testified that they heard a shuffle in the kitchen and a door slam during the early morning. Upon investigation a purse was found open and two single dollars which had been folded into quarters were missing. Later in the same morning a police officer came upon the accused sitting in his car about three or four blocks from the complainants’ home, searched him and found two single $1 bills in his coat pocket folded in four parts. Other than the possession of the quartered bills there is nothing in the evidence to connect the accused with the breaking and entering of the complainants’ home or the larceny of the $2. (The People v. Hodgson, 167 N.Y.S. 2d 291)
Although proof of recent and exclusive possession of the fruits of a crime may justify an inference of guilt of the crimes of burglary and a larceny there must be sufficient evidence not only that such fruits of the crime were taken from the true owner but also were the same as found in the possession of the accused. Here, the bills presented to the Grand Jury were not identified as having been taken neither from the defendant nor as those missing from the purse. (The People v. Hodgson, 167 N.Y.S. 2d 291)
The evidence presented to the Grand Jury here was purely circumstantial. Although it is not to be discredited simply because of its nature, such evidence must, however, meet the test prescribed by law, that is, it must not only be inconsistent with innocence but must exclude to a moral certainty every other reasonable hypothesis except that of defendant’s guilt. The rule is well settled that an indictment, based upon circumstantial evidence, which does not possess the degree of certitude which the law requires as to those facts bearing upon the accused’s guilt, must be dismissed. (The People v. Hodgson, 167 N.Y.S. 2d 291)
Accordingly, the conviction of this defendant, whose sentence has already expired, is reversed and the indictment dismissed.
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