People v. Waterford

Timothy P. Donaher, Public Defender, Rochester (James Eckert of Counsel), for Defendant–Appellant.

Sandra Doorley, District Attorney, Rochester (Stephen X. O'Brien of Counsel), for Respondent.

PRESENT: CENTRA, J.P., FAHEY, SCONIERS, WHALEN, and DeJOSEPH, JJ.

MEMORANDUM:Defendant appeals from a judgment convicting him after a jury trial of criminal possession of stolen property in the fourth degree (Penal Law § 165.45[5] ) and unauthorized use of a vehicle in the second degree (§ 165.06). Viewing the evidence in light of the elements of the crime of criminal possession of stolen property in the fourth degree as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we reject defendant's contention that the verdict with respect to that crime is against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). “ ‘[D]efendant's knowledge that property is stolen may be proven circumstantially, and the unexplained or falsely explained recent exclusive possession of the fruits of a crime allows a [trier of fact] to draw a permissible weight it should be accorded (see People v. Ohse, 114 A.D.3d 1285, 1286–1287, 980 N.Y.S.2d 229, lv. denied 23 N.Y.3d 1041, 993 N.Y.S.2d 254, 17 N.E.3d 509 ; see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ).

We also reject defendant's contention that the jury charge with respect to the crime of unauthorized use of a vehicle in the second degree was ambiguous and a misstatement of the law that unconstitutionally required the jury to apply a statutory presumption. Penal Law § 165.05(1), a prerequisite to the application of section 165.06, specifies that, where a defendant “takes, operates, exercises control over, rides in or otherwise uses a vehicle ... without the consent of the owner[,] [the defendant] is presumed to know that he does not have such consent.” Although a charge that requires a jury to apply a presumption that shifts the burden of proof to the defendant is unconstitutional (see Sandstrom v. Montana, 442 U.S. 510, 524, 99 S.Ct. 2450, 61 L.Ed.2d 39 ), here the record reveals that the charge sufficiently conveyed to the jury that “it had a choice as to whether to apply the statutory presumption” (People v. Smith, 23 A.D.3d 415, 416, 804 N.Y.S.2d 774, lv. denied 6 N.Y.3d 781, 811 N.Y.S.2d 348, 844 N.E.2d 803 ). Thus, we conclude that the charge was proper.

Defendant's contention that he was deprived of a fair trial by prosecutorial misconduct during summation is not preserved for our review (see People v. Ross, 118 A.D.3d 1413, 1416–1417, 988 N.Y.S.2d 756, lv. denied 24 N.Y.3d 964, 996 N.Y.S.2d 223, 20 N.E.3d 1003 ; see also People v. Ettleman, 109 A.D.3d 1126, 1126, 971 N.Y.S.2d 621, lv. denied 22 N.Y.3d 1198, 986 N.Y.S.2d 419, 9 N.E.3d 914 ; People v. Heck, 103 A.D.3d 1140, 1143, 958 N.Y.S.2d 830, lv. denied 21 N.Y.3d 1074, 974 N.Y.S.2d 323, 997 N.E.2d 148 ). In any event, that contention is without merit, inasmuch as we conclude that County Court's jury charge cured any potential prejudice caused by statements of the prosecutor on summation that may have shifted the burden of proof or constituted a misstatement of law (see People v. Robinson, 111 A.D.3d 1358, 1359, 975 N.Y.S.2d 830, lv. denied 22 N.Y.3d 1141, 983 N.Y.S.2d 499, 6 N.E.3d 618 ; see also People v. Copeland, 30 A.D.3d 1022, 1023–1024, 816 N.Y.S.2d 264, lv. denied 7 N.Y.3d 847, 823 N.Y.S.2d 776, 857 N.E.2d 71 ).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.