Opinion
May 8, 1989
Appeal from the Supreme Court, Kings County (Huttner, J.).
Ordered that the judgment, as amended, is reversed, on the law, the indictment is dismissed, and the matter is remitted to the Supreme Court, Kings County, for the purpose of entering an order in its discretion pursuant to CPL 160.50.
"[I]n order to establish a defendant's guilt beyond a reasonable doubt on the basis of exclusively circumstantial proof, `the hypothesis of guilt should flow naturally from the facts proved, and be consistent with them; and the facts proved must exclude "to a moral certainty" every hypothesis of innocence'" (People v Piazza, 48 N.Y.2d 151, 158, quoting from People v Benzinger, 36 N.Y.2d 29, 32; People v Wachowicz, 22 N.Y.2d 369, 372). The only evidence tending to establish the defendant's guilt was the presence of his fingerprints on the bottom of a jewelry box which had been taken from the complainant's apartment. However, since the jewelry box was recovered outside of the complainant's apartment in an area which was accessible to the public, it cannot be said that the evidence excluded to a moral certainty every hypothesis of innocence. Thus, it was not legally sufficient to establish the defendant's guilt beyond a reasonable doubt (see, People v Jacob, 55 A.D.2d 961; cf., People v Jenkins, 115 A.D.2d 562). Brown, J.P., Lawrence, Eiber and Sullivan, JJ., concur.