(dissenting). The standard for sustaining a conviction based exclusively on circumstantial evidence was enunciated in People v Williams (35 NY2d 783). “[T]he facts from which the inference of the defendant’s guilt is drawn must be established with certainty, must be inconsistent with his innocence and must exclude to a moral certainty every other reasonable hypothesis”.
McLean satisfied the first two parts of this standard. He is conclusively placed at the scene of the crime. He was seen by one witness through the peephole in her door. The blood on his shoes *171conflicts with protestations of innocence. It is interesting to note that the blood was found on the top of his shoes, not on the soles. This is inconsistent with the claim that the defendant had only stepped in the blood after being arrested. The problem lies in excluding all other hypotheses to a moral certainty.
The primary incriminating facts against McLean are as follows: Defendant was at and/or near the scene of the crime. Blood was found on the top of his shoes. He ran at the sight of police officers. He had no alibi, instead giving unverifiable information to the police. He was also placed at the scene of the crime by two witnesses, based on his clothes and build, one of whom saw him through a peephole.
Williams (supra), heavily relied on by the defense, has a similar fact pattern. The victim had been shot and the defendants, two men, had been seen walking past the doorway where the crime had taken place. They were later found waiting at a nearby bus stop and arrested. Blood was found on the defendants’ clothing, which they claimed came from “shooting up”. One officer testified that he saw no fresh needle marks, which was disputed by the testimony that one week later, fresh needle marks were evident (and the defendant had been in custody in the interim). The defendants also presented testimony as to their whereabouts, although this testimony was disputed by other witnesses. McLean is distinguishable in that one witness specifically testified that she saw McLean at the crime scene, through the peephole, where Williams was only seen near the crime scene.
People v Lagana (36 NY2d 71) also has a similar fact pattern. The defendant had been involved in an altercation at a club. He was later seen double-parking his car in front of the club and getting out of the car. No one saw him shoot anyone, but shots were fired and one witness testified that the shots came from the defendant’s direction. The defendant fled the scene and was later apprehended by the police. His car had bloodstains. The motive was held to stem from his altercation at the club. The court said: “The People’s evidence establishes motive, places the defendant at the scene of the crime at the time of the shooting, supports the conclusion that he fired the shots, and demonstrates clearly defendant’s flight from the scene. From all the evidence, the jury could have found beyond a reasonable doubt that the defendant did shoot the decedent with the requisite intent.” (People v Lagana, at p 74.) In the instant case, McLean was placed at the crime scene. No one saw him shoot the victim, but blood was found on the tops of his shoes. His motive is *172supplied by the fact that in the decedent’s apartment, there was a setup similar to that used by drug or arms dealers. While this does not provide a clear-cut motive, it does eliminate most “reasonable” hypotheses. He was also caught clearly fleeing the area.
In addition, the defendant herein did not take the stand. This leaves the People’s case as the only explanation for the events. The jury found the defendant guilty, so the inferences may be drawn against him.
In conclusion, there is a sufficient basis for reversing the decision below. The jury could be found to have excluded all other hypotheses to a moral certainty.
Sandler and Bloom, JJ., concur with Carro, J; Kupferman, J. P., dissents in a separate opinion.
Order, Supreme Court, Bronx County, entered on June 30, 1983, affirmed.