
    The People of the State of New York, Respondent, v. Richard Wachowicz, Appellant.
    Argued May 27, 1968;
    decided July 1, 1968.
    
      
      Bruce K. Carpenter and Henrietta M. Wolfgang for appellant.
    I. The evidence was not sufficient as a matter of law to warrant the findings of guilt. (People v. Oyola, 6 N Y 2d 259; People v. Lewis, 275 N. Y. 33; People v. La Belle, 18 N Y 2d 405; People v. Monaco, 14 N Y 2d 43; People v. Orr, 270 N. Y. 193; People v. Cooperman, 279 N. Y. 599; People v. Kohn, 251 N. Y. 375; People v. Jenman, 296 N. Y. 269; People v. Moran, 123 N. Y. 254; People v. Sullivan, 173 N. Y. 122.) II. Introduction of codefendant’s tools into evidence was prejudicial to appellant. (People v. Larned, 7 N. Y. 445; Ruloff v. People, 45 N. Y. 213; People v. Hetenyi, 277 App. Div. 310, 301 N. Y. 757; People v. Vitagliano, 15 N Y 2d 360.) III. The search of codefendant’s person was unlawful; the pinch bar was introduced into evidence to appellant’s prejudice. (People v. Rivera, 14 N Y 2d 441; People v. Smith, 35 Misc 2d 533; People v. Martin, 45 Cal. 2d 755; Jones v. United States, 362 U. S. 257; People v. Cefaro, 45 Misc 2d 990, 28 A D 2d 694; People v. Estrada, 28 A D 2d 681; United States v. Mancusi, 379 F. 2d 897; People v. Loria, 10 N Y 2d 368; People v. Caliente, 12 N Y 2d 89.)
    
      Michael F. Dillon, District Attorney (Herbert J. Herman of counsel), for respondent.
    I. The evidence was sufficient. (People v. Monaco, 14 N Y 2d 43; People v. Giordano, 213 N. Y. 575; People v. Birnbaum, 208 App. Div. 476; People v. Yazum, 13 N Y 2d 302; People v. Harris, 136 N. Y. 423; People 
      v. Regina, 19 N Y 2d 65; People v. Orr, 270 N. Y. 193; People v. Cooperman, 279 N. Y. 599; People v. Kohn, 251 N. Y. 375.) II. The seizure of the evidence was proper. (People v. Rivera, 14 N Y 2d 441; People v. Sibron, 18 N Y 2d 603; People v. Peters, 18 N Y 2d 238; People v. Vetrano, 20 N Y 2d 698; People v. Horowitz, 21 N Y 2d 55.)
   Bergan, J.

The circumstantial evidence in this record, seen in full perspective, forms a reliable basis upon which the jury could make a finding that defendant-appellant Wachowicz, acting with Jack Morris, attempted to break into a building in the early hours of the morning and for this purpose they used together a pinch bar, a workable burglar’s tool found in possession of Morris.

Proof of the crime itself, the attempt to commit burglary, is clear and unmistakable. The physical evidence points to such a crime. It is an accepted rule that the corpus delicti may be established by circumstantial evidence (22A C. J. S., Criminal Law, § 604, p. 410; People v. Feeley, 374 Ill. 402).

The attempted break was made in a tavern. The manager testified he had left the premises at 3:30 in the morning and had locked the three doors to the street. There were no marks on the doors at this time and they were properly closed. Defendant was found close to the tavern and arrested at 5:30 in the morning.

When the doors to the tavern were thereafter examined it was found by the manager and the police that one door was partly opened; inside hooks had been pulled loose from it, and there were marks on all three doors which a jury, looking at contemporary photographs and hearing the testimony, could readily believe were made after 3:30 a.m. by a metal instrument in an attempt to. break in.

As the police approached in a radio car in response to a call, the source of which was not identified, to go to the tavern, the defendant and Morris were seen, as the police witnesses described what they saw, “right next to each other” and * right together ’ ’ and ‘ ‘ they were together ’ ’. They were “ along side ” the tavern.

There is some proof that as the police car approached they were “walking” but as the police got out of the car this defendant-appellant “made three or four quick steps”, while Morris “ stood still ”.

It was observed that Morris “ stuck something in his back pocket and pulled his shirt down When he was frisked by the police an iron pinch bar was found. This fitted accurately into some of the places where there were marks on the tavern doors.

The jury could reasonably have found, then, that Morris had in his hand the pinch bar while he and this defendant were in close proximity to a building on which the bar had been used to attempt a break and that defendant’s quick steps away from Morris as the police arrived were the result of a guilty apprehension. The least that can be said of this record is that this defendant’s guilt is a reasonable inference both in the attempted break and the use of the tool found in Morris’ pocket.

It is interesting to note that the reports of the older criminal cases show comparatively little reliance on confessions obtained by the police and hence, of necessity, greater dependence was placed on circumstantial proof of the crime charged. It becomes clear that in future practice, in the light of constitutional safeguards, the confession will become a rarer thing; and, therefore, it is necessary, especially in homicide and burglary, to keep in clear focus the effective role of circumstantial proof.

The rule governing the sufficiency of circumstantial evidence as this court has restated it many times is: (a) that the hypothesis of guilt should ‘ ‘ flow naturally from the facts proved, and be consistent with them all”; (b) the facts proved must all be consistent with guilt and inconsistent with innocence and exclude “to a moral certainty” every hypothesis but guilt (e.g., People v. Bennett, 49 N. Y. 137,144; People v. Harris, 136 N. Y. 423; People v. Razezicz, 206 N. Y. 249; People v. Woltering, 275 N. Y. 51, 61; People v. Eckert, 2 N Y 2d 126). The rule, as Judge Hubbs noted in Woltering, has been “repeatedly reiterated by this court ”.

But with these precautions, essentially an insistence on reliability of the inferences to be drawn from established facts, this court has always accepted circumstantial evidence as a sound basis for adjudication in criminal as well as in civil cases.

In the end, it is a question whether common human experience would lead a reasonable man, putting his mind to it, to reject or accept the inferences asserted for the established facts.

As Chief Judge Bartlett noted in People v. De Martini (218 N. Y. 561, 566), this court has never held that direct evidence “is always of a higher quality”; but, indeed, has “ declared otherwise ”, citing People v. Place (157 N. Y. 584). In that case, a careful analysis of the general rule that the inference of guilt must be the only one ‘ ‘ that can be reasonably drawn from the facts ”, restated in People v. Harris (supra), Judge Martin examined the circumstantial facts of a murder to conclude that the proof “points with almost unerring certainty” to defendant’s guilt (p. 595).

Wigmore and others have compared the relative reliability in the business of adjudication of direct and circumstantial evidence without, as Chief Judge Bartlett noted in Be Martini (supra), reaching a judgment value. Indeed, Wigmore says that “it is out of the question to make a general assertion ascribing greater weight to one class or to the other” (1 Wigmore, Evidence [3d ed.], § 26, p. 401).

But he does cite as one example of judicial evaluation the opinion of Gibson, C. J., in Commonwealth v. Harman (4 Pa. 269, 271-272): “Circumstantial evidence is, in the abstract, nearly, though perhaps not altogether, as strong as positive evidence; in the concrete, it may be infinitely stronger.”

Wharton draws this conclusion: 11 The view has often been stated that circumstantial evidence is to be viewed with distrust and that, to justify a conviction on circumstantial evidence, it is necessary to exclude every possible hypothesis of innocence. When, however, the courts have given serious consideration to the relative advantage of direct and circumstantial evidence, they have in general recognized that circumstantial evidence may, in given circumstances, have equal if not greater weight than direct evidence so-called.” (Wharton’s Criminal Evidence [12th ed.], § 6, pp. 12-13, citing Harman, supra.)

Finally, most proof in a court is directed toward an inference to be drawn. Much of what an eyewitness describes needs implementation to become the basis for decision; and the court must continuously seek, as far as it can from facts and groups of facts adduced, a reliable basis for its judgments.

This, indeed, has been the experience of this court where a careful analysis of the reliability of circumstantial proof has led to differentiated results. Sometimes circumstantial proof has been held sufficient; sometimes insufficient. It was held sufficiently reliable to sustain conviction, e.g., in Harris, Place and Eckert (supra); and insufficiently reliable, and thus requiring new trials in Razezicz (supra); People v. Giordano (213 N. Y. 575) and Woltering (supra). In Di Martini (supra) a new trial was ordered because the charge misconceived the role of circumstantial evidence. The concurrently decided case of People v. Cleague (22 N Y 2d 363) is in the chain of differentiated evaluations in which a majority of the court is of opinion the circumstantial proof is not strong enough.

But in the present case the only reasonable hypothesis to which the facts lead is the one accepted by the jury, that when the police came this defendant had just attempted to break into the tavern.

The judgment should be affirmed.

Breitel, J. (dissenting).

Defendant Bichard Wachowicz appeals from an order of the Appellate Division, unanimously affirming without opinion a judgment of the Erie County Court. After a jury trial, defendant and codefendant Jack Morris were convicted of attempted burglary in the third degree and possession of burglar’s tools as a misdemeanor. A charge of unlawful intrusion (former Penal Law, § 2036) was dismissed at the close of the People’s case. Defendant Wachowicz was sentenced to the Elmira Beformatory on the attempted burglary charge and to one year in the Erie County Penitentiary on the misdemeanor, the two sentences to run concurrently. Codefendant Morris received a suspended sentence and has not appealed.

The issue here, as in the closely related case of People v. Cleague (22 N Y 2d 363, decided herewith), is whether the People established defendant’s criminal liability as an accomplice. Defendant Wachowicz contends that the People’s circumstantial case does not exclude a reasonable hypothesis of innocence. I agree and would reverse the conviction on the ground that the evidence is insufficient, as a matter of law, to prove guilt beyond a reasonable doubt.

While on motor patrol at 5:30 a.m. on August 30,1964, officers Wood and Mordino of the Buffalo Police Department drove to the Armory Tavern in response to a radio call. Defendant Wachowicz and codefendant Morris were observed walking together on the sidewalk, about 15 feet from the tavern building. As the police car approached, the defendants started walking in opposite directions. The police officers arrested and frisked the two defendants. The search of defendant Wachowicz revealed nothing, but on codefendant Morris the police discovered a “pinch bar ” (small crowbar). When arrested, Wachowicz said nothing, while Morris stated that the two “ weren’t doing anything” and that they were going to meet their wives. A subsequent search of Morris’ car, parked on the street nearby, revealed a large pinch bar and a pair of shears.

The manager of the Armory Tavern testified that he had locked up the building at 3:30 a.m. on the morning in question. When he returned at 6:00 a.m. (after defendants had been arrested) he noticed that a side door had been partly opened and that all three doors of the building bore freshly made marks. Arresting Officer Mordino testified that these marks matched the pinch bar found on codefendant Morris.

In order to convict defendant Wachowicz of attempted burglary and possession of burglar’s instruments, the jury was required to make a number of inferences, some of which have insufficient probability to support an ultimate conclusion of his guilt beyond a reasonable doubt.

From the marks on the doors, which “matched” the pinch bar found on Morris, the jury could infer, and did, that Morris had attempted to break into the tavern. Second, if the first inference is made, these marks would also support the inference that Morris carried the pinch bar for illegal purposes. These two inferences support Morris’ culpability for attempted burglary and possession of burglar’s tools.

But in order to convict defendant Wachowicz of these crimes still further inferences are required. As to him we have only his proximity to Morris on the street, his acquaintanceship with him, and his conduct at the time of arrest. Solely from these facts the jury was required to infer that Wachowicz was an accomplice in the attempted burglary. And from this inference of joint activity the jury was also required to infer that the tools on Morris ’ person and in his car were in the ‘ ‘ constructive possession” of Wachowicz. These last inferences rest on the barest conjecture. From the facts proved, a reasonable hypothesis of defendant’s innocence may be entertained. Consequently, the standard of proof in criminal cases resting on circumstantial evidence—proof excluding to a “ moral certainty” every reasonable hypothesis except that of guilt— has not been met, and this defect raises a question of law reviewable in this court (People v. Bearden, 290 N. Y. 478, 480; Cohen and Karger, Powers of the New York Court of Appeals, p. 743).

Defendant Wachowicz’ observed conduct is consistent with innocence. He was seen walking with Morris on a public sidewalk at an early morning hour. Even accepting that the People sufficiently established Morris’ attempt at burglary, nothing except the circumstance of Wachowicz’ presence in the area and acquaintanceship with Morris ties him to this attempt. The attempt to enter the tavern could have been made at any time between 3:30 a.m. and 5:30 a.m., the time of the arrest. Thus, Wachowicz could well have come upon Morris on the street after the latter had abandoned the attempt to burglarize. Finally, there is no evidence that defendant knew or should have known of the pinch bar concealed on Morris’ person or the tools found in Morris’ car, and the finding that defendant constructively possessed these implements is baseless.

The proof of Wachowicz’ guilty participation in the crimes committed by Morris falls far below the standard established in prior cases. Thus, in People v. Kohn (251 N. Y. 375), this court reversed the conviction of a defendant (Wriede) whose observed behavior could have been that of a lookout or accomplice, but could also have been that of an innocent man. The facts of the case are in remarkable parallel to this one. In that case, while standing in a doorway, defendant Wriede had exchanged hand waves with codefendant Kohn, who was standing at the entrance of an adjoining building which he had allegedly burglarized. Thereafter the two met on the street and began walking away together. In reversing Wriede’s conviction for attempted burglary, the court held (p. 378) that “ the mere wave of a hand by a felon, who is leaving the scene of his crime, and a return wave by the- person saluted, can have no force to establish that the two have been confederates in the offense committed.” By the same token, Wachowicz’ presence in the company of the alleged burglar Morris near the scene of the crime, but not necessarily at or about the time of the crime, is insufficient to establish his participation in the attempted burglary. Notably, this court, in the Kohn case, gave little circumstantial weight to the acquaintanceship between Kohn and Wriede.

Where a circumstantial case rests upon inferences which, singly or cumulatively, are not compelling, there is grave danger that innocent persons will be swept up in a web of suspicious circumstances. The danger is particularly great in 1 ‘ accomplice ” cases, where a strong case against one defendant may illegitimately reinforce a weak case against a codefendant whose participation in a joint criminal scheme is inadequately proved. Courts have always guarded against such logical errors in cases of circumstantial evidence (People v. Cleague, 22 N Y 2d 363, decided herewith; People v. Kohn, supra). This traditional caution should not be diminished merely because modern authorities have also demonstrated the great dangers inherent in direct evidence (see, e.g., 1 Wigmore, Evidence [3d ed.], § 26).

Nor does the perhaps diminishing availability of confessions, a highly trustworthy kind of proof when voluntary, justify out of necessity the substitution of attenuated and, therefore, untrustworthy inferences based on probabilities of low degree. It would be a barbarous result to exclude otherwise credible confessions because obtained unfairly, thus often permitting the guilty to escape punishment, and to accept as sufficient attenuated inferences that would result in convicting many of the innocent.

Accordingly, I dissent and vote to reverse the judgment and dismiss the indictment.

Judges Burke, Scileppi, Keating and Jasen concur with Judge BergaN ; Judge Breitel dissents and votes to reverse in a separate opinion in which Chief Judge Fuld concurs.

Judgment affirmed.  