I respectfully disagree with the majority’s conclusion that errors in the conduct of the trial were so harmless as not to require reversal and a retrial. Unquestionably, the prosecution’s admissible evidence, if believed, was sufficient to satisfy the standard of proof for a circumstantial evidence case, notably, the proof that defendant was the last known person to have been alone with the victim in a secluded area before the murder, that a knife found in the area had on it human blood and fibers of the same material as the victim’s shirt, was capable of inflicting the victim’s stab wounds and had been accessible to defendant at his home, and that defendant falsely related hearing the *187victim’s sister or mother calling the victim home when he claimed that he and the victim parted company. From my reading of the record, however, I find that the remainder of admissible prosecution evidence, such as the minor discrepancies in the several versions of the places and chain of events defendant gave to various interrogators, that defendant was untruthful in maintaining that there was no quantity of water in the hole he fell into when he sustained the cut to his thumb, and that in the preceding year he once casually told another child that he "hated” the victim, were of little probative value and, given the tender age of defendant, not persuasively inconsistent with innocence.
In derogation of the strength of the evidence of guilt, there was an absence of any explanation for the spot of dried blood, characterized by a prosecution witness as being fresh, found on the victim’s sneaker, which was of a type different from either that of defendant or of the victim, the absence of any inculpatory admissions by this 13 year old during the course of repeated questioning by the pplice and the lack of any credible evidence of motive for this brutal, senselessly violent homicide. The latter factors have commonly been relied upon in appellate review where evidence of guilt was found to have been overwhelming, in circumstantial or even direct evidence cases (see, People v Morgan, 66 NY2d 255, cert denied — US —, 106 S Ct 1984; People v Fuller, 50 NY2d 628; People v Crimmins, 36 NY2d 230). Additionally, the defense introduced expert testimony, which was not inherently improbable or conclusively refuted, that the time of what had to be almost instantaneous death from the stabbings was substantially after defendant returned home at about 6:30 p.m. and that the shape and depth of some of the wounds were inconsistent with their having been inflicted by the knife which, as previously discussed, the prosecution linked to defendant.
In short, I do not find that the evidence of guilt was either so exhaustive or so one-sided as to constitute overwhelming proof of guilt, the first of the two necessary factors that must be demonstrated before nonconstitutional error in a criminal case can be overlooked as harmless (see, People v Crimmins, supra, at 241-242). The jury was presented with some gaps and open questions in the proof and with sharply contested issues of credibility of both lay and expert witnesses, all of which had to be resolved before reaching a guilty verdict. In such circumstances, it cannot be fairly said that the quantum and nature of the proof, excising the error, was so logically com-*188polling and forceful as to lead an appellate court to conclude that a fairminded jury "would almost certainly have convicted the defendant” (People v Crimmins, supra, at 242).
Even assuming, arguendo, that the competent evidence adduced at trial constitutes overwhelming proof of guilt, I would nonetheless find a significant probability that the errors committed at the trial affected the verdict (see, People v Crimmins, supra, at 242). Determination of this issue obviously requires some qualitative evaluation of the importance of the role the improper conduct complained of or the inadmissible evidence played in the trial. In my view, the erroneous reception of evidence that defendant’s clothes were "soaked” or "drenched” in blood through the witness Millicovsky’s testimony of overhearing that description by defendant’s stepmother, together with the equally erroneous jury instruction to the effect that the disappearance of the clothing while in defendant’s parents’ possession could be considered as consciousness of guilt, were critically damaging to the defense.
As previously pointed out, there was conflicting expert testimony on the time of death and as to the murder weapon. Hence, the forensic evidence was not conclusively against defendant. Whether the victim had been summoned home also presented a question of credibility between defendant and the victim’s family. The presence of some quantity of blood on defendant’s clothing was plausibly explained by the cut on his thumb, which did in fact exist. Defendant having been covered with blood on return from his walk with the victim, however, would be wholly unexplained by the cut on his thumb and totally inconsistent with any hypothesis other than defendant’s involvement in the multiple stabbings of the victim. The damning nature of this evidence was emphasized in the prosecutor’s summation, characterizing Millicovsky as a witness "who isn’t under anybody’s control * * * just a man who feels the truth has to be known. He has no relationship with anybody”. The jury was encouraged to focus on the very same evidence in County Court’s erroneous charge that it could consider the destruction or concealment of incriminating evidence as indicative of defendant’s consciousness of guilt. Defendant’s clothing, the only missing evidence in the case, would only have been incriminating, in the context of the entire proof, if it indeed had been drenched in blood. The combination of these errors was thus to improperly present to the jury evidence, from a purportedly totally disinterested *189witness, which it could readily consider as the only unassailable proof of guilt.
I conclude, therefore, that the absence of overwhelming proof of guilt, and, alternatively, the significant probability of actual prejudice as a result of these trial errors, requires reversal and remittal for a new trial.
Mahoney, P. J., Kane and Weiss, JJ., concur with Casey, J.; Levine, J., dissents and votes to reverse in an opinion.
Judgment affirmed.