Majority
p. 663The People of the State of New York, Respondent, v. Charles Noland, Appellant.
Judgment of the County Court, Nassau County, rendered Hay 7, 1965, reversed, on the facts, and new trial ordered. While the general rule is that, when a victim or “ a witness positively identifies a defendant as the man who committed a crime, the weight of the evidence of identification is for the jury unless it is incredible as a matter of law ” (People v. Seppi, 221 N. Y. 62 , 68), it is our opinion that the evidence of identification was insufficient to support a finding that the evidence proved defendant to be guilty beyond a reasonable doubt. Christ, Acting P. J., Brennan, Rabin, Hopkins and Benjamin, JJ., concur.