People v. Aleo 17 A.D.2d 911

Judgment of conviction reversed on the law and facts and a new trial granted. Memorandum: Appellant stands convicted of the crime of grand larceny in the first degree for the theft of gems from a jewelry store. No one saw him steal the gems and they have not been recovered. His conviction rests solely on circumstantial evidence showing that he had an opportunity to *912commit the crime. Such proof does not exclude the hypothesis of theft of the gems by others. It fails to establish appellant’s guilt beyond a reasonable doubt. All concur, except Williams, P. J. and Bastow, J., who dissent and vote to affirm. (Appeal from judgment of Erie County Court convicting defendant of the crime of grand larceny, first degree.) Present — Williams, P. J., Bastow, Goldman, McClusky and Henry, JJ.