| People v Serrano |
| 2008 NY Slip Op 08168 [55 AD3d 450] |
| October 28, 2008 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v JuanSerrano, Appellant. |
—[*1] Juan Serrano, appellant pro se. Robert M. Morgenthau, District Attorney, New York (Elizabeth Squires of counsel), forrespondent.
Judgment, Supreme Court, New York County (A. Kirke Bartley, J.), rendered February 22,2007, convicting defendant, after a nonjury trial, of burglary in the second degree, and sentencinghim, as a second violent felony offender, to a term of seven years, unanimously reversed, on thelaw, and the indictment dismissed.
The verdict was based on legally insufficient evidence. The victim's apartment wasburglarized at some time between noon and 5:00 p.m. At about 1:30 p.m. that same day, butbefore the burglary was reported, defendant, a homeless man, was observed by a police officerabout a block away from the burglary, standing near a dumpster. The officer observed acollection of small items on defendant's person, in a bag he was holding, and on top of thedumpster. Since the officer did not yet know about the burglary and had no reason to detaindefendant, the officer permitted him to leave, and did not recover any of the items. However,when the victim reported the burglary the following day and described the items stolen, theofficer remembered having seen defendant in possession of the same group of items. There wasalso evidence that defendant was known to have occasionally received food in the basement ofthe church-owned building where the burglary occurred.
The crime of burglary may be established by way of the presumption of guilt that flows fromrecent, exclusive, and unexplained or falsely explained possession of the fruits of a crime (seePeople v Galbo, 218 NY 283, 290 [1916]; People v Costello, 162 AD2d 276 [1990],lv denied 76 NY2d 854 [1990]). Even assuming that a trier of fact could reasonablyconclude that the items the officer saw in defendant's possession and proximity constituted thesame group of items stolen from the victim, the difficulty here is that defendant's possession hasa reasonable innocent explanation. These objects were of very little value, and some of themwere on the dumpster. Thus, the evidence supports a reasonable inference that defendantrummaged in the dumpster and found items that the actual burglar discarded after realizing theywere unmarketable. Given this inference, the trier of fact lacked any basis for concluding, beyonda [*2]reasonable doubt, that defendant stole the property asopposed to finding property stolen by someone else (compare People v Moore, 291AD2d 336 [2002], with People v Scurlock, 33 AD3d 366 [2006], lv denied 7NY3d 928 [2006]). Defendant's connection with the building where the burglary occurred is tooequivocal to warrant a different conclusion.
Were we not reversing on the law, we would find that the verdict was against the weight ofthe evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]).Concur—Mazzarelli, J.P., Andrias, Nardelli, Buckley and Freedman, JJ.