(dissenting). I dissent and. vote to affirm the judgment of conviction.
The general rule is the Court of Appeals will not review a criminal ease wherein the Appellate Division reverses and in the interest of justice directs a new trial. (People v. Campbell, 25 N Y 2d 784; People v. Rossi, 11 N Y 2d 787, 788; People v. Mendola, 2 N Y 2d 270, 274; People v. Redmond, 225 N. Y. 206, 208; Cohen and Karger, Powers of the Court of Appeals [Rev. ed.], p. 754.) However, I have grave doubts as to the propriety of the exercise of discretion, as a matter of law, in the case at bar where concededly there is no basis in the record for the exercise of such discretion and the court is required to speculate,' assume and decide the issue in a vacuum as has been done by the majority.
The record, in my opinion, presents a clear question of fact relative to identification. Complainant’s testimony establishes adequate opportunity, normal vision and good lighting in the lobby, as well as in the elevator. The complainant was very close to the defendant since the defendant rode up in the elevator with her and she was physically held by the defendant. The complainant soon after the occurrence gave the police a sub*349stantially accurate description of a person similar to the defendant. The defense of alibi and what amounts to a general denial on the part of the defendant present issues of credibility for the jury. The charge was lengthy including marshaling of the facts and repeated instructions to the jury as to the presumption of innocence despite the defendant’s extensive criminal record, and his inability to earn a livelihood. Since 1956, the defendant had been convicted of possession of narcotics, possession of hypodermic needle, petit larceny, burglar tools, and policy. He had been addicted to narcotics for many years. His work record is nil. He, his wife and his family have been supported by welfare. There were no exceptions by the defendant and the requests for additional charges on the part of the defendant were granted. There is no amplification by the trial court with respect to its conclusion that the defendant, in its opinion, was innocent and no steps were taken by the trial court to either set aside the verdict or to direct an acquittal. There is nothing in the record or in the points made which suggests that any other material testimony is available to the prosecution or the defense. Hence, it would appear that a retrial will serve no useful purpose except to compel the prosecution to present the identical case before another jury and thus give the defendant the benefit of a second trial to which this record in my opinion shows he is not entitled.
The majority assumes that for reasons best known to the Trial Judge, the Trial Judge was of the impression that the identification testimony of Mrs. Quinones was not entirely reliable. There is no basis for such an assumption and the record is silent on this aspect.
The majority holds the record is unsatisfactory. I do not find it so. The identification presented a simple jury question. The public prosecutor, in my opinion, sustained the burden imposed on him by law and established to the jury’s satisfaction the guilt of the defendant. I believe the judgment of conviction should be affirmed.
Maskswich, Nunez and Macken, JJ., concur with Eageb, J. P.; McNally, J., dissents in opinion.
Judgment reversed and vacated and a new trial directed on the law and in the interests of justice.