dissent">Murphy, P. J. (dissenting).

Although I agree with the majority that this appeal is properly before us, I cannot agree that the Family Court Judge abused his discretion when he dismissed the juvenile delinquency petitions here involved against respondents Kevin B. and Timothy L. In each case, the Assistant Corporation Counsel’s opening statement disclosed deficiencies in the presentment agency’s proof so fundamental as to make further proceedings futile and, indeed, wasteful.

Respondent Kevin B. was charged with acts which, if committed by an adult, would constitute the crimes of criminal mischief in the third degree, attempted grand larceny in the third degree, and unauthorized use of a vehicle in the third degree. After one adjournment requested by petitioner on April 18, 1985, in order to secure the complainant’s presence in court, the fact-finding hearing finally commenced on November 21, 1985. The Assistant Corporation Counsel (hereinafter the ACC) opened by announcing that since the complainant had not been reached during the previous seven months, the entire case would consist of the testimony of the arresting *72officer. As the officer was unable to establish the value of the property involved in the charged offenses, the ACC requested that the court consider the lesser included offenses of criminal mischief in the fourth degree and attempted petit larceny, neither of which requires proof of property value. The balance of the ACC’s opening statement reads: "Officer Quine [the arresting officer] is going to testify on the night of April 13, 1985, about 12:50 in the morning he was on patrol when he observed two individuals looking into a car. They were walking in the neighborhood peering into the windows of cars, one of them a BMW when he first saw these individuals. He in effect recognized one of them as Kevin B. The officer who had been on patrol in the station of that neighborhood for several years and he knew Kevin B. on sight. Looking at them peering in the window, this area is known to the officer as prone to having cars breaking [sic] into. Observing he continued to follow them. While on patrol he observed them looking into other cars and ultimately stopped. They were back at the BMW they were originally looking into and while Kevin B. stood outside acting as a lookout the other individual Thomas Sacks, an adult, went into the car and attempted to remove the radio. When he observed the crime the officer approached and apprehended the two individuals before they had an opportunity to remove the radio from the car.”

Following this opening, the Law Guardian moved to dismiss the petition on the ground that without the complainant’s testimony it could not be established that respondent and Sacks were without permission to enter the car and remove property therefrom. In addition, the Law Guardian urged that the testimony of the police officer would not be sufficient to prove that respondent acted in concert with the adult, Sacks. Thereafter, the court correctly observed that a motion to dismiss, made at the end of the prosecution’s opening statement, must be ruled on before proceeding with the presentation of evidence (People v Kurtz, 51 NY2d 380, 386). Prior to ruling on the motion, however, the court permitted the ACC an opportunity to be heard. The ACC added nothing to his previous account of the case. Rather, he argued in reliance on People v Borrero (26 NY2d 430) that the arresting officer’s testimony would be sufficient to prove respondent’s larcenous intent. Unconvinced, the court granted respondent’s motion and dismissed the petition.

In the Matter of Timothy L., the respondent was charged with acts which, if committed by an adult, would constitute *73the crimes of petit larceny and criminal possession of stolen property in the third degree. The ACC’s opening in Timothy L. consisted of a perfunctory recitation of the elements of the crimes charged, followed by this account of the proof to be offered: "We’re going to prove the elements of both these defenses [sic] based on testimony of only one witness, the police officer in this matter; the witness to the entire crime perpetrated by this respondent. And in addition, under 'circumstances upon which the respondent did perpetrate the crime,’ the circumstances will be clear that there was absolutely no permission or authority of the apparent owner of this property to have the respondent take or possess the umbrella, your Honor. We will prove all these elements with the aid of this officer who eye-witnessed this incident to the crime by proof beyond a reasonable doubt, your Honor.” Following a brief opening statement by counsel for respondent, underscoring the elements of the offenses to be proved, the court dismissed the petition. The ACC, however, was permitted to make a record. In his ensuing comments the ACC, relying once again on People v Borrero (supra)urged that the crimes charged could be proved from the "surrounding totality of the circumstances” concerning which the police officer would testify. No elaboration was provided by the ACC as to what the police officer would say that would so unerringly indicate the respondent’s guilt. Rather, the ACC began to relate what he had been told by the complainant, who, of course, was not available to testify. At this point, the court quite appropriately cut the ACC short, stating: "Mr. Sanders, I will not hear you testify as to what the facts are”. The court adhered to its prior ruling and dismissed the petition.

The presentment agency, of course, has the burden of proving beyond a reasonable doubt the respondent’s commission of each element of the offense charged. Although evidence adduced to support a conviction may be circumstantial, the evaluation of circumstantial evidence by the trier of fact presents difficulties which do not obtain where there is direct evidence. Reliance on circumstantial evidence involves the trier in a process of inferring facts directly probative of guilt from other circumstances. Where evidence is wholly circumstantial, special care must be taken to assure that the inferences made are sufficiently strong to constitute proof of guilt beyond a reasonable doubt. Thus, it is well established that a case based entirely on circumstantial evidence must eliminate "to a moral certainty” every reasonable theory of innocence. *74(People v Benzinger, 36 NY2d 29, 32.) While it is true that where there is only limited reliance on circumstantial evidence, the fact finder’s process of inference is not so strictly scrutinized (see, e.g., People v Barnes, 50 NY2d 375, 379-380), that can be of very little help to the presentment agency in the within matters. This is because, contrary to the majority’s assertion, the evidence in Kevin B. was wholly circumstantial, and in Timothy L., although there was direct proof of asportation, as the majority concedes, all the remaining elements of the offenses charged (i.e., ownership, lack of consent, and intent), would have had to be inferred from the attendant circumstances as reported in the arresting officer’s testimony.

Case law does not appear to address the point specifically, but where, as in Timothy L., there is direct proof of only one of several elements of a crime, it is questionable whether the rigorous inferential, standards ordinarily applicable to circumstantial cases ought to be relaxed. If only one element of an offense (usually intent or knowledge) is circumstantially proven, the "moral certainty” standard need not be applied (see, People v Von Werne, 41 NY2d 584, 590); the strength of the inference is sufficiently assured by the direct evidence as to the offense’s other elements. Thus, in a larceny case where there is direct evidence of asportation and the complainant testifies as to ownership and lack of consent, the inference of intent to steal follows quite naturally from the direct evidence as to the remaining elements of the offense. But in a case like Timothy L., where there is direct proof of asportation only, and the other elements of the charged offenses including ownership, lack of consent and intent, all have to be proved from the circumstances attending the asportation, the inferences necessary to support a finding of guilt are numerous and do not invariably flow naturally or with a high degree of necessity from surrounding circumstances. In such cases, it would seem important to examine the inferential process with special care; although the reliance on circumstantial evidence is not exclusive, it is sufficiently great that the rationale underlying the application of the "moral certainty” standard should not be lost sight of. Having made these observations, I would note that whether or not the "moral certainty” standard applies to the evaluation of the evidence in the within cases as I believe it should, the ultimate question remains whether the above-quoted opening statements provided the court with any indication that the charges against the respon*75dents could be proven beyond a reasonable doubt. In my view they did not.

In Kevin B., if we disregard the numerous irrelevancies in the ACC’s opening statement, the case boils down to this: a police officer saw respondent in the company of an adult looking into cars and subsequently observed the adult enter one of the cars and attempt to remove a radio as the respondent stood on the nearby sidewalk.

The first count which the ACC proposed to prove against respondent Kevin B., criminal mischief in the fourth degree (Penal Law § 145.00), requires proof that the accused, having no right to do so nor any reasonable ground to believe that such a right exists, has intentionally damaged the property of another.

Initially, it should be pointed out that the ACC’s opening statement did not indicate that the arresting officer saw either respondent or the adult he was with damage the car. Nowhere in the ACC’s statement is it asserted that the adult broke into the car. The ACC said only that the officer observed the adult as he "went into the car and attempted to remove the radio”. The statement contains not the slightest indication that the car was in any way damaged, much less that it was damaged by respondent in concert with the adult. Moreover, given the apparent lack of any proof that the car had been damaged, it is very difficult, if not impossible, to see the basis for inferring the other elements of fourth degree criminal mischief. Had the ACC indicated that the adult had been observed damaging the car in an effort to gain entry or to remove the radio, it would at least be arguably inferable that the adult had no right to act as he did. But if such testimony was to be given by the officer, the court was not so apprised.

It is in this respect that the present case differs markedly from People v Borrero (26 NY2d 430, supra). In Borrero, a police detective observed the defendant prying on the window vent of a parked automobile with a screwdriver, apparently trying to shear off the vent lock so as to obtain entry to the vehicle. After several minutes, the defendant was spoken to by a third party and abruptly ceased his activity; he placed the screwdriver under his jacket and began to walk away, at which point he was apprehended. The Court of Appeals found that although the evidence was circumstantial, it was strong enough to exclude any reasonable hypothesis that the use of the screwdriver was innocent. As the court observed: "com*76mon experience would suggest the owner of the car would have a locksmith or mechanic open the car, rather than pay the cost of a new window and its installation. Moreover, such a hypothesis hardly comports with the conduct of the defendant who suddenly stopped his labors after a few words from another person, secreted the screwdriver under his jacket and departed the scene” (supra, at 436). Clearly, the observations of the officer in the present matter, as described in the ACC’s opening statement, were quite different from those of the detective in Borrero. As noted, the ACC gave no indication that the officer would testify that the car had been entered in a manner patently inconsistent with ownership or permissive use so as to obviate the necessity of the complainant’s testimony.

Even more problematic is the difficulty in linking respondent culpably to the adult’s activities. Although it is asserted that respondent was acting as a "lookout”, there was absolutely no reference to any specific activity on respondent’s part, observed by the officer, that would even circumstantially confirm that he was aiding the adult in the commission of a crime. It should be noted that guilt of fourth degree criminal mischief cannot be established unless it is proven that the accused did not reasonably believe that he had a right to act as he did. To establish this element in the present matter would entail proving not only that the adult was without reasonable grounds to believe he was acting rightfully, but that his 13-year-old companion, respondent, was aware of that. Yet, even if respondent was aware of the wrongful nature of the adult’s conduct, something about which there may be considerable doubt given the benign description of the adult’s conduct provided in the opening statement, that still would not be sufficient to prove respondent’s guilt as an accessory to criminal mischief and attempted petit larceny. It would remain necessary to prove that he intentionally aided in the conduct constituting the offense.

In Matter of Victor M. (68 AD2d 837), this court addressed the propriety of imposing accessorial liability in circumstances very much like those here obtaining. In that case, the respondent stood beside the complainant’s automobile as his companion reached into the car and grabbed a pocketbook. The two then climbed a fence and fled through a park until they were apprehended about a half mile away, with the companion still in possession of the pocketbook. We noted: "[ajlthough this 10 year old may have acted with the knowledge that the pocket*77book was stolen, it is an additional prerequisite to guilt that he intentionally had aided his corespondent in the conduct constituting the offense. (Penal Law, § 20.00.) We cannot conclude that appellant’s actions in following the purse snatcher over the fence and running with him into the park evince, to the exclusion of every other reasonable hypothesis consistent with innocence, an intentional aiding in the commission of the crime” (Matter of Victor M., supra, at 837).

If it was not possible to hold the respondent in Victor M. (supra)accountable as an accessory, neither would it be possible to hold respondent herein accessorially liable. In Victor M., the flight of the two juveniles after the theft at least gave some indication that they were acting together. Here, however, there is nothing but the ACC’s conclusory assertion that respondent was observed acting as a "lookout”. If there was some factual basis for this conclusion, some specific conduct observed by the arresting officer, from which it could be inferred that respondent was in fact acting as a "lookout”, the ACC wholly failed to bring it to the court’s attention. All that could be fairly gleaned from the ACC’s opening remarks in Kevin B. was that respondent stood nearby as the adult, in whose company he had been, "went into” a car and engaged in conduct of uncertain legality, which respondent may or may not have known was wrongful. As has been observed in circumstances far more indicative of accessorial liability than those here obtaining, "[m]ere presence at the scene of a crime with knowledge of its perpetration does not render the observer accessorially liable therefor (see People v La Belle, 18 NY2d 405, 412)” (People v Reyes, 82 AD2d 925, 926).

It should be emphasized that inasmuch as respondent’s alleged connection with possible criminal conduct is solely in the role of an accessory, and there is not the slightest indication of any direct evidence linking him to the adult’s supposedly illicit activity, the case against him is entirely circumstantial. The police officer’s testimony then would have had to establish facts excluding to a "moral certainty” the hypothesis of respondent’s innocence. (See, People v La Belle, supra, at 412.)

Although the majority apparently is of the view that the police officer’s testimony as to respondent’s actions and demeanor would, or, more correctly, could have pointed with sufficient probative force to respondent’s guilt, that is nothing but the purest speculation. The court was bound to decide the motion to dismiss on the basis of the ACC’s opening state*78ment. (People v Kurtz, supra, at 386.) From that statement and the ACC’s ensuing remarks, the court could only have gathered that it was being asked to adjudge respondent guilty of criminal mischief and attempted petit larceny without any testimony from the complainant as to ownership or lack of permission, without any indication that the property concerned had in fact been damaged, and with only the observations of the arresting officer, none of which were even briefly specified, to connect respondent culpably with the adult’s activity. Under these circumstances, where there appeared not even a small possibility that the charges could be proven beyond a reasonable doubt, it was not, in my view, an abuse of discretion for the court to dismiss the petition at the end of the ACC’s opening statement.

Turning to the Matter of Timothy L., the respondent there was charged with acts which, if committed by an adult, would constitute the offenses of petit larceny and third degree possession of stolen property (now, pursuant to the Penal Law, as amended by L 1986, ch 515, criminal possession of stolen property in the fifth degree). In his above-quoted opening, the ACC advised the court that there would be no testimony from the complainant and that the entire case would rest upon the testimony of the police officer who witnessed respondent "take or possess” an umbrella. The ACC’s statement does not say from whom the umbrella was taken or describe any of the circumstances of the alleged theft. The ACC urged, nevertheless, that the completely unspecified circumstances attending the umbrella’s asportation and possession by respondent would prove beyond a reasonable doubt that respondent did not own the umbrella, had no permission to use it, and intended to keep it from its owner.

I do not say that the presentment agency must prove its case in its opening statement. I do, however, think that, having indicated its readiness to try a matter, the presentment agency should, in its opening, at least be able to indicate to the court that there is a viable case to be made. In a larceny case where there is no complainant to testify as to the ownership of the allegedly stolen items or to establish that there was no permission given for their appropriation or use, and it is proposed that these elements and the intent of the accused are to be established by circumstantial evidence alone, it would seem that the court should, at a minimum, be briefly apprised of the specific circumstances, proof of which would warrant the inference of those facts elemental to the *79respondent’s guilt. (See, People v Kurtz, supra, 51 NY2d at 384.) Here, the court was left completely in the dark. If, after having permitted the presentment agency full opportunity to give an intelligible account of the case to be made, the bare factual outlines of the matter are still indiscernible, I see no basis for requiring the court to permit the trial to proceed. It must be presumed that if there were a viable case, the presentment agency would be able to so indicate in its opening.

A careful reading of the record in each of the within matters discloses that the court afforded the presentment agency ample opportunity to set forth the specific circumstantial facts whose proof would support the respondent’s guilt. In each case, however, the ACC proved either unwilling or unable to articulate the factual basis for the charges against the respondent, beyond what had been set forth in the manifestly inadequate opening. The ACC’s reliance on Borrero (supra)was not per se inappropriate, for in certain situations lack of ownership and permission may be proven by circumstantial evidence. A prosecution is, however, not sustainable upon theory alone; there must in addition be facts which make reliance on the theory proper. Some of these facts must be brought to the court’s attention from the outset, at least to the extent necessary to show that the case is viable. Where the case rests wholly, or in large part, upon circumstantial evidence necessitating numerous inferential leaps, it would seem particularly important that the factual bases for the proposed inferences be set forth in the opening statement. When this is not done, and the court is given no indication whether the necessary inferences can be made, much less whether they can be made with the very high degree of strength necessary to exclude any reasonable doubt as to the respondent’s guilt, there is, in my view, no ground to permit the trial to go further. To allow the proceeding to continue on the unfounded speculation that something might turn up is both unfair to the respondent, and wasteful of precious court resources.

Accordingly, as the Family Court’s dismissal of the within petitions was, in my view, entirely appropriate, I dissent and would affirm the appealed orders.

Milonas and Wallach, JJ., concur with Sullivan, J.; Murphy, P. J., and Asch, J., dissent in an opinion by Murphy, P. J.

*80Order, Family Court, New York County, entered on November 21, 1985, reversed, on the law, without costs and without disbursements, the petition reinstated and the matter remanded for further proceedings.

Order, Family Court, Bronx County, entered on January 30, 1986, reversed, on the law, without costs and without disbursements, the petition reinstated and the matter remanded for further proceedings.

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