
    The People of the State of New York, Respondent, v. Michael Virgilio, Appellant.
   Appeal by defendant from a judgment of the County Court, Nassau County, rendered November 27, 1968, convicting him of grand larceny in the first degree, after a non jury trial, and imposing sentence. Appeal dismissed insofar as defendant seeks review of two orders of said court, one dated October 30, 1967 denying his motion inter alia to dismiss the indictment and the other, dated May 7, 1968, which, on reargument, adhered to the determination in .the order of October 30, 1967. Review of these orders is academic in view of the determination herein with respect to the judgment. Judgment reversed, on the law and the facts, and indictment dismissed. In our opinion, the circumstantial evidence, upon which .the People relied exclusively, failed to exclude to a moral certainty every other hypothesis except defendant’s guilt of the crime charged, viz., stealing and appropriating for his own use cement belonging to his employer valued in excess of $500 (Richardson, Evidence [9th ed.], § 152). In addition, there was absolutely no proof (circumstantial or direct) as to what happened to the cement allegedly stolen and thus a failure to prove an essential element of the crime charged (see People v. Dreares, 15 A D 2d 204, 206, affd. 11 N Y 2d 906). Christ, Acting P. J., Munder and Martuseello, JJ., concur; Benjamin, J., dissents and votes to affirm the judgment; (Beldock, P. J., deceased.) [See 34 A D 2d 788.]  