Opinion
November 23, 1992
Appeal from the Supreme Court, Kings County (Goldstein, J.).
Ordered that the judgment is modified, on the law, by reversing the conviction of criminal possession of stolen property in the fourth degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
On August 18, 1989, at approximately 10:40 P.M., Laurence Ahearn had his 1985 Pontiac 6000 double parked while he dropped a letter in a mailbox. A man raced to the car, got in, and drove off as Ahearn attempted to oust him from the car. On August 27, 1989, following a crime spree involving Ahearn's automobile, and giving rise to the crimes with which the defendant now stands convicted, the defendant and two other codefendants were arrested in Ahearn's automobile. At trial, Ahearn did not identify the defendant or any of the codefendants as the man who had taken his car.
The defendant contends, inter alia, that the evidence was insufficient to establish that he knew the vehicle had been stolen, a necessary element of criminal possession of stolen property in the fourth degree (see, Penal Law § 165.45). We agree.
The People failed to request an instruction on the inference arising from the recent and exclusive possession of the fruits of the crime (see, People v Galbo, 218 N.Y. 283; 1 CJI [NY] 9.80, at 564-571). Therefore, that inference was not considered by the jury in arriving at its verdict on the charge of criminal possession of stolen property in the fourth degree (see, People v Edwards, 104 A.D.2d 448; People v Hunt, 112 A.D.2d 781). Absent that inference, the proof on that charge was insufficient to establish that the defendant knew the vehicle was stolen. There were no other independent facts from which the jury could infer the necessary knowledge (cf., People v Bradley, 143 A.D.2d 276).
We have examined the defendant's remaining contentions and find them to be without merit. Thompson, J.P., Eiber, Copertino and Pizzuto, JJ., concur.