¶1(dissenting). I respectfully dissent.
¶2"Identity of name, in the absence of all other proof on the subject, raises a presumption in civil cases of identity of person. …
¶3"The rule is naturally much less liberal in criminal prosecutions. Thus, in People v. Reese, 258 N. Y. 89, 96, 179 N. E. 305, 306, 79 A. L. R. 1329, the court said: 'Identity of name is not always sufficient in a criminal prosecution to show identity of person, but it may be accepted as sufficient if fortified by circumstances’ ” (Richardson, Evidence §85 [Prince 10th ed]; see also, Annotation, Prior Conviction-Identification, 11 ALR2d 870; 9 Wigmore, Evidence § 2529). Here, the identity of name was fortified by circumstances. Both the previous conviction and the present one were for the same crime (driving while intoxicated), in the same locality (the Town of Gates). The names of the defendants in both cases were exactly the same, including the middle initial, and the name Gary H. Vollick is not a common one. Whereas there may be other Gary H. Vollicks in the United States, it is highly improbable that there was more than one Gary H. Vollick convicted for driving while intoxicated in the Town of Gates within the past 10 years.
¶4*952Under these circumstances, the presumption of identity of person from identity of name is not an unreasonable one to impose upon a criminal defendant. If the Gary H. Vollick previously convicted in Gates Town Court was not the same Gary H. Vollick as defendant in this case, defendant could easily have refuted the presumption by showing that there were other Gary H. Vollicks in the area or that the residence of the Gary H. Vollick previously convicted was different from his. (Appeal from judgment of Monroe County Court, Egan, J. —felony driving while intoxicated.) Present — Dillon, P. J., Callahan, Boomer, Green and Davis, JJ.