People v. Lathigee , 98 A.D.2d 978 ( 1983 )

— Judgment unanimously affirmed. Memorandum: On this appeal we are concerned with the sufficiency of the circumstantial evidence of defendant’s guilt and whether it excludes to a moral certainty every other hypothesis but that of guilt. The record discloses that the key link in the chain of circumstantial evidence is proof that the blade of a screwdriver found in defendant’s car was the same size and shape as one of the pry marks on the front door of the burglarized premises, and had on it traces of wood and paint consistent with, and not dissimilar to, the wood and paint of the front door. Absent this evidence, the People’s theory of the sequence of events and defendant’s participation as an accomplice is plausible and consistent with all the established facts, but does not rule out the reasonable hypothesis of innocence. With this proof any hypothesis of innocence is no longer reasonable. (Appeal from judgment of Orleans County Court, Miles, J. — burglary, first degree, and another charge.) Present — Dillon, P. J., Hancock, Jr., Green, O’Donnell and Schnepp, JJ.