People v. Panarella

¶1We cannot agree with the statement of the majority that the judgment of conviction of criminal possession of a dangerous weapon (Penal Law, § 265.05) "was based partially on direct evidence and partially on circumstantial evidence.” In our view, the evidence is wholly circumstantial. Defendant Panarella was accused in each count of the indictment of having "in [his] possession a ñrearm loaded with ammunition” (emphasis added). He was not accused of having "something” in his possession. The testimony of Agent McWeeney was merely proof of an event or happening which afforded a basis for a reasonable inference by the jury of the occurence of the fact charged, i.e., that the "something” was a "firearm”, as charged in the indictment. This is a classic example of proof by circumstantial evidence. Therefore, in the absence of the statutory presumption (Penal Law, § 265.15, subd 3) guilt can only be established by circumstantial evidence that excludes to a moral certainty every reasonable hypothesis of innocence (People v Cleague, 22 NY2d 363). Where, as here, the crime charged in the indictment consists of only a single element, the circumstantial evidence must be of such probative quality that it precludes everything but guilt. In People v Sabella (35 NY2d 158, 168), cited by the majority, the court was concerned with the statutory requirement of corroborative proof in the prosecution of a perjury indictment. In concluding that such a requirment can be satisfied where circumstantial evidence furnishes partial proof of a single element of the crime charged, the court took great pains to point out that it was not undermining *971the standard of excluding every hypothesis but guilt to a moral certainty in those cases, as here, " 'where the prosecution relies wholly upon circumstantial evidence to establish the guilt of the accused’ ” (p 168; citations omitted). (Emphasis added.) In Sabella (supra),the circumstantial evidence was tested as to its probative worth to corroborate a single element of a crime. Here, like proof must prove guilt. Given the standard to be applied, it cannot. Of course, the above discussion of the quality of the circumstantial evidence is anchored to the testimony of Pate who characterized defendant’s arm and hand motion as follows: "April Ballinger was panicked; Charlie [defendant] reached over probably to prevent her from going out the door.” While this testimony of John Pate, under indictment on the same charges as defendant, is suspect and offers an explanation of defendant’s conduct that may be unlikely, it is, nevertheless, rational and consistent with innocence. It cannot be removed from the fact pattern against which the "hypothesis” standard must be weighed by stating that "the jury could reject Pate’s testimony” and "properly find that defendant’s guilt was established beyond a reasonable doubt [citation omitted]” (majority opn). Such tailoring would result in a digest of the totality of the evidence and be a wholly inadequate backdrop against which to weigh and test the "hypothesis” standard. The test should not be. what the jury found, but, rather, what it could have concluded given testimony consistent with the innocence of the accused. We are not dealing with the reality of the jury’s verdict. Rather, our concern must be with the hypothesis raised by the totality of the proof before the case is presented to the veniremen. Here, the testimony of John Pate, who could have exonerated himself by testifying that defendant physically possessed one of the handguns, must be accorded a degree of rationality consistent with a hypothesis of innocence on the part of the defendant (People v Cleague, supra).The judgment should be reversed, and the indictment dismissed.