dissent and vote to reverse in the following memorandum by Yesawich, Jr., J. Yesawich, Jr., J. (dissenting). The People have established that Lynn May Bailey was murdered sometime between 10:00 p.m. on September 10,1981 and September 13,1981, but it has not been proven to a certainty that defendant played a role in her drowning death by, as the indictment charges, “binding, gagging and restraining her and placing her *671in a body of water”. When they parted on September 10, 1981, for approximately the tenth time, she packed some of her belongings in a vinyl mattress bag; her response to his comment that he was taking the rest of her things to a nearby dump was indifference. Bailey requested that defendant drive her to nearby Willow, New York, and drop her near an unidentified friend’s house. En route their argument escalated causing defendant to let her out before reaching her destination; this was at the intersection of Route 212 and Glaseo Turnpike, some two miles from where the body was ultimately found. It was approximately 2:30 a.m. Defendant then proceeded back to their apartment and went to sleep. He never saw Bailey again. 11 During the morning of September 11, defendant emptied the apartment of both their things, took them to the dump and since, as he and Bailey had earlier discussed, the rental was more than they could manage, he returned the key to their newly rented apartment to the realtor, who then refunded defendant’s deposit. Defendant then drove to Kingston on his employer’s business and when the taxi he was driving broke down, defendant decided he’d “had enough”, bought a ticket and boarded a bus for Los Angeles. To this point defendant’s actions, though not commendable, were neither inherently incredible nor contradicted. H While the People argue that defendant told Constable Holsapple, in the unrecorded conversation of September 15, 1981, that he learned of Bailey’s absence from her parents, there is convincing evidence that defendant was first made aware that he was being sought for theft of the taxi and also that Bailey was missing when he spoke to Barry Titus. This prompted defendant’s call to the Woodstock police to advise them that he had not stolen the taxi, that he had told his employer’s father to tell his son that the car had broken down in Kingston, and inquired about Bailey declaring he had heard that she was missing. The second call, on September 16,1981, made at Holsapple’s behest, was recorded; there defendant again voiced his concern over the warrant for his arrest for auto theft, clearing his name, and of Bailey’s whereabouts. In this conversation, defendant stated that he had heard from Titus that Bailey had disappeared. At Holsapple’s request, defendant called again the following evening and for over two hours, in a taped conversation, chronicled his relationship with Bailey, during which time the call was traced. The tapes, all received in evidence, reveal that although defendant on one occasion said he was in Las Vegas when in fact he was in Los Angeles, he truthfully told Holsapple when he was in San Francisco. After apprehension by the San Francisco police, defendant voluntarily furnished them a statement, also tape recorded, in which he reiterated the financial and emotional problems he and Bailey had been experiencing, denied harming her and contradicted nothing said in his two and one-half hours of conversation with Holsapple. Despite the blandishments of the police, not once in these rather extensive conversations did defendant make any admission or confession. 11 For this conviction to stand, based as it is entirely on circumstantial evidence, the hypothesis of guilt must flow naturally from the facts proved and be consistent with them, and the facts proved must exclude to a moral certainty every reasonable hypothesis of innocence (People v Lagana, 36 NY2d 71, 73-74, cert den 424 US 942; People v Vitalis, 67 AD2d 498, 503). We do not believe the evidence meets this standard. The prosecution suggests that because defendant was the last to see Bailey alive and was obsessed with her, and their relationship was admittedly turbulent, that defendant finally “cracked” and in a transport of emotion killed Bailey; this is hardly an indisputable inference, given the absence of any signs on Bailey’s body of a struggle. Also worth noting is the lack of any proof that the clothing and suspenders used to bind Bailey belonged to her or to defendant, and the fact that there is no evidence that defendant was in possession of any hypodermic needles. 1 The People also point to defendant’s impulsive trip *672to California, his short hair and clean shaven appearance upon being arrested as evidence of flight; he previously had shoulder-length and facial hair. Defendant’s explanation for each is reasonable and his conduct can reasonably be viewed as that of an innocent man. In his conversations with Holsapple and the San Francisco police, he said that he left Woodstock because he needed to get away from Bailey, with whom in the past he would repeatedly resume a relationship after breaking up, a relationship which he felt was destroying his mental health. His new appearance was precipitated by his considering joining the military and was consistent with a break with the past and his now clean-cut image. Further evidence of claimed flight, such as defendant’s purchase of a bus ticket on a different bus line to travel from Las Vegas to Los Angeles when his original ticket would have carried him there and his purchase of new clothing, are both susceptible of innocent explanations. It is not implausible that he may have believed that once he interrupted his passage, his ticket was no longer valid. The supposition that his actions in this respect were contrived to conceal his whereabouts is at best inconclusive, particularly when measured against the fact that he initiated three phone calls to the police, called them when requested to do so, apprised them of his location and remained on the phone long enough to enable the call to be traced. 11 To support the theory that defendant knew Bailey was missing because he killed her and not because, as he contends, he found out from Barry Titus, the People submit that the lack of a billing charge to his parents’ phone, to which he charged the calls to the police, constitutes sufficient proof. Not only is it equally possible that defendant paid for the calls to Titus, more importantly, there is other evidence that defendant heard that Bailey was missing from Titus. First, Holsapple’s Grand Jury testimony stated that defendant said Titus told him about Bailey’s disappearance during the first untaped conversation. There is also defendant’s immediate correction of Holsapple in the first taped conversation when Holsapple proposed that Bailey’s parents told him. In this regard, it is also noteworthy that the People, who bear the burden of proof, though aware of Titus, inexplicably elected not to call him to the stand. H One other point requires mention; the time of Bailey’s death was never established. The forensic pathologist testified that he could not determine when she died other than that it was sometime between September 10 and September 13,1981. It is possible then that when Bailey was murdered, defendant was not even in this State (see People v Vitalis, supra, p 504). 11 As the majority has recorded, some of the evidence is consistent with guilt. That defendant may have been responsible for Bailey’s death is not, however, enough to sustain a conviction; the evidénce must also be inconsistent with innocence. In our view, the evidence here is as consistent with innocence as with guilt. Accordingly, the judgment should be reversed and the indictment dismissed.