Opinion
Argued October 16, 1979
Decided November 20, 1979
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, M. HOLT MEYER, J.
William E. Hellerstein, John F. McGlynn and Charles Schinitsky for appellant.
Allen G. Schwartz, Corporation Counsel (Stephen J. McGrath and L. Kevin Sheridan of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be reversed and the petition charging appellant with juvenile delinquency should be dismissed.
Unlike the defendant in People v Wachowicz ( 22 N.Y.2d 369), upon which the Appellate Division majority relied, appellant was in possession of no burglar's tools. The only evidence to connect appellant circumstantially to the attempted break-in is his flight and the fact, which the Family Court Judge impliedly found, that appellant lied about his whereabouts at the time of the attempted break-in. As to the first, however, the flight could equally well be attributed to appellant's status as a trespasser (People v Irvin, 43 N.Y.2d 704; cf People v Leyra, 1 N.Y.2d 199, 209). As to the latter, appellant's denial of presence can hardly be equated with proof, beyond a reasonable doubt, of attempted burglary.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.
Order reversed, without costs, and the petition dismissed in a memorandum.