PEOPLE v. BURKE

Judgment unanimously reversed, on the law, and indictment dismissed. Memorandum: The circumstantial evidence against defendant, including the evidence that she had admitted being present in the car outside the residence while it was burglarized by her alleged accomplices, did not establish beyond a reasonable doubt defendant's participation in the crimes. The proof failed to show that defendant acted with the necessary mental culpability or that she solicited, requested, commanded, importuned, or intentionally aided the others to commit these crimes (Penal Law § 20.00; People v. Perniciaro, 58 N.Y.2d 751, 753). Defendant's mere presence at the scene of the crimes does not establish her intent to commit them (see, People v. La Belle, 18 N.Y.2d 405, 411-413). Moreover, since the proof did not negate the possibility that defendant accompanied the others without foreknowledge of the scheme to commit the burglary, it failed to exclude to a moral certainty every reasonable hypothesis other than guilt (see, People v. Way, 59 N.Y.2d 361; People v. Cleague, 22 N.Y.2d 363; People v. LaBelle, supra).