
    The People of the State of New York, Respondent, v. Irving Pearlstone, Appellant.
    Supreme Court, Appellate Term, First Department,
    November 15, 1962.
    
      Henry K. Schnitser for appellant. Frank 8. Hogan) District Attorney (Richard B. Luts of counsel), for respondent.
   Per Curiam.

Evidence of observation of defendant’s activities by a police officer prior to arrest, all of which activities are consistent with a finding of innocence, the overhearing of the statement, “ Pearly, give me the knicks five times,” made by an unknown male in defendant’s presence while the said male is passing money to the defendant, and finding the defendant possessed of some $500 upon a search of his person, are not sufficient, even in toto, to establish the guilt of defendant beyond a reasonable doubt.

The judgment of conviction should be reversed on the law and on the facts, and the complaint dismissed. Fine remitted.

Hoestadtbr, J. P.

(dissenting). The requirement of 11 beyond a reasonable doubt ” is not to be deemed, in my opinion, as precluding a finding of guilt where the evidence, realistically and naturally viewed, justifies it. Here, the defendant’s conduct, before and after arrest, is wholly consistent with guilt and totally inconsistent with innocence. The defendant offered no evidence in his own behalf. I do not believe we need strain to relieve a defendant fairly convicted of the penalty imposed by statute. Hence, I dissent and vote to affirm.

Hecht and Gold, JJ., concur; Hoestadtbr, J. P., dissents in memorandum and votes to affirm.

Judgment of conviction reversed, etc.  