
    The People of the State of New York, Respondent, v Charles O’Neal, Appellant.
   Appeal by defendant from a judgment of the County Court, Suffolk County, rendered June 5, 1975, convicting him of conspiracy in the second degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the facts, and indictment dismissed. At the close of the prosecution’s case, the trial court dismissed the counts of the indictment against defendant O’Neal which charged him with multiple counts of kidnapping in the second degree and of unlawful imprisonment in the first degree, and one count of endangering the welfare of an incompetent, leaving only the charge of conspiracy in the second degree. The testimony adduced does not establish defendant’s guilt of the crime beyond a reasonable doubt. The trial court correctly charged the jury that, in order to convict for conspiracy in the second degree, there must be proof beyond a reasonable doubt of intent that conduct constituting a Class B or Class C felony be performed (here kidnapping in the second degree) and that the defendant agreed with one or more persons to engage in or to cause the performance of such conduct (see Penal Law, § 105.10). The circumstantial proof respecting defendant’s conduct was as equally consistent with innocence as with guilt, and in no event excluded his innocence to a moral certainty (see People v Brown, 37 AD2d 623; accord, People v Mackell, 47 AD2d 209, 213). Martuscello, Acting P. J., Rabin, Shapiro, Titone and Hawkins, JJ., concur.  