8 A.D.2d 930
N.Y. App. Div.
1959

Judgment of conviction modified on the law and facts in accordance with the memorandum and as modified is, together with the order, affirmed. Memorandum: Defendant was convicted of the crime of grand larceny, first degree, on the charge that he had stolen personal property of the value of over $500. Defendant was arrested as he was about to leave the city and certain items of a value of less than $100 were found in his possession. He steadfastly denied having stolen anything other than-the property in his possession. The complaining witness testified that at the same time the items found on the *931defendant were stolen from her home, other property including a camera and two mink stoles, all with a value of substantially more than $500, were also taken. There was no proof as to the whereabouts of the property not found upon the defendant and his conviction rests upon the speculation that having stolen some of the missing items it is presumed that he took all of the property which the complaining witness testified was missing. The proof against the defendant does not meet the test laid down in People v. Foley (307 N. Y. 490, 493) for “it cannot be said that the evidence excludes to a moral certainty every other reasonable hypothesis but that defendants had conscious recent and exclusive possession of the stolen property”. Defendant’s conviction of grand larceny, first degree, is against the weight of the evidence and the only verdict which was justified under the proof presented against him was the lesser degree of such crime, to wit, petit larceny. Under the authority of section 543 of the Code of Criminal Procedure the judgment of conviction of grand larceny, first degree, is modified and reduced to petit larceny. All concur except Williams, J., who dissents and votes for affirmance. (Appeal from judgment and order of Erie County Court and a jury, convicting defendant of the crime of grand larceny, first degree. The order appealed from denies defendant’s motion for a new trial.) Present — Kimball, J. P., Williams, Bastow, Goldman and Halpern, JJ.