Appellate Division of the Supreme Court of New York, 1970

People v. Gregory R.

People v. Gregory R.
Appellate Division of the Supreme Court of New York · Decided May 25, 1970
34 A.D.2d 829; 312 N.Y.S.2d 418; 1970 N.Y. App. Div. LEXIS 4711
People v. Gregory R.

Opinion of the Court

Appeal by defendant from a judgment of the County Court, Nassau County, rendered September 18, 1968, which adjudicated him a youthful offender, after a nonjury trial, and committed him to a reformatory term. Judgment reversed, on the law and the facts, and youthful offender information dismissed. In our view, the People failed to prove defendant guilty of acts which would constitute burglary and larceny beyond a reasonable doubt and, accordingly, the adjudication cannot be sustained. The People’s evidence was primarily circumstantial in nature and wholly insufficient to establish defendant’s participation in the crime to a moral certainty (see People v. Cleague, 22 N Y 2d 363). Even if we were not dismissing the information, a new trial before a jury would have had to be held as defendant was unconstitutionally required to consent to a trial without a jury in order to qualify for youthful offender treatment (People v. Michael A. C. [Anonymous], 32 A D 2d 554). Christ, P. J., Latham, Kleinfeld, Brennan and Benjamin, JJ., concur.

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