I concur in the result. Under former section 1041 of the Penal Law and its predecessor, section 181 of the former Penal Code, a conviction could not be had for murder or manslaughter unless the death of the victim was established by direct proof. That the death was caused by defendant’s criminal agency could not be established solely by the confession of the defendant, but it was not essential that the independent evidence, standing alone, be sufficient to establish such causal connection. It was enough under section 395 of the former Code of Criminal Procedure if the additional circumstantial evidence reasonably tended to prove the crime and corroborate the confession (People v Brasch, 193 NY 46).
When the Legislature pointedly declined to re-enact the provisions of former section 1041 of the Penal Law, it put an end to the rule that the death of the victim must be established by direct proof. Thus even though there is no witness to the homicidal act and the dead body has not been found, if the confession and the additional circumstantial proof together establish the commission of the crime beyond a reasonable doubt, a conviction will be sustained. Such is the standard which flows from CPL 60.50.
On those points, then, I agree with Justice Moule’s dissent. Nonetheless, I vote to affirm because here defendant’s confession and the extrinsic circumstantial evidence, considered together are insufficient as a matter of law to demonstrate beyond a reasonable doubt either that the alleged victim is dead or that her death was caused by defendant’s criminal agency.