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In re Thomas M.

48 N.Y.2d 828 Court N.Y. Decision date 1979-11-20 English

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p. 828
In the Matter of Thomas M., a Person Alleged to be a Juvenile Delinquent, Appellant.
Argued October 16, 1979;
decided November 20, 1979
APPEARANCES OF COUNSEL
William E. Hellerstein, John F. McGlynn and Charles Schinitsky for appellant.
Allen G. Schwartz, Corporation Counsel (Stephen J. Mc-Grath and L. Kevin Sheridan of counsel), for respondent.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the petition charging appellant with juvenile delinquency should be dismissed.

p. 829
Unlike the defendant in People v Wachowicz ( 22 NY2d 369 ), upon which the Appellate Division majority relied, appellant was in possession of no burglar’s tools. The only evidence to connect appellant circumstantially to the attempted break-in is his flight and the fact, which the Family Court Judge impliedly found, that appellant lied about his whereabouts at the time of the attempted break-in. As to the first, however, the flight could equally well be attributed to appellant’s status as a trespasser (People v Irvin, 43 NY2d 704 ; cf People v Leyra, 1 NY2d 199 , 209). As to the latter, appellant’s denial of presence can hardly be equated with proof, beyond a reasonable doubt, of attempted burglary.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order reversed, without costs, and the petition dismissed in a memorandum.

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