Opinion
March 11, 1968
Judgment of the County Court, Nassau County, rendered February 14, 1967, affirmed. No opinion.
I agree with Mr. Justice Martuscello that the admission of evidence concerning other crimes committed by defendant was reversible error. I further believe that it was reversible error to permit an officer to testify that he had defendant under observation before the arrest ( People v. Gonzalez, 24 A.D.2d 989; People v. Penner, 283 App. Div. 731). However, I think the indictment should not be dismissed but, instead, a new trial should be ordered. Martuscello, J., dissents and votes to reverse the judgment and to dismiss the indictment, but in any event to order a new trial, with the following memorandum: The indictment should be dismissed on the ground that the conviction was based entirely on circumstantial evidence which was inadequate to establish beyond a reasonable doubt that defendant broke and entered the premises described in the indictment. Mere suspicion and proof of opportunity to commit the crime and false explanations are insufficient to support a conviction (see, People v. Orr, 270 N.Y. 193; People v. Nowakowski, 221 App. Div. 521; People v. Owens, 20 A.D.2d 900; People v. Dornblut, 24 A.D.2d 639). In any event, there should be a new trial on the ground that reversible error was committed by admitting evidence tending to show that defendant had committed other crimes.