| People v Waterford |
| 2015 NY Slip Op 00023 [124 AD3d 1246] |
| January 2, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vCarl Waterford, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (James Eckert of counsel), fordefendant-appellant.
Sandra Doorley, District Attorney, Rochester (Stephen X. O'Brien of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (John Lewis DeMarco, J.),rendered February 3, 2010. The judgment convicted defendant, upon a jury verdict, ofcriminal possession of stolen property in the fourth degree and unauthorized use of avehicle in the second degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him after a jury trialof 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 ofcriminal possession of stolen property in the fourth degree as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we reject defendant's contention that the verdict withrespect to that crime is against the weight of the evidence (see generally People vBleakley, 69 NY2d 490, 495 [1987]). " '[D]efendant's knowledge thatproperty is stolen may be proven circumstantially, and the unexplained or falselyexplained recent exclusive possession of the fruits of a crime allows a [trier of fact] todraw a permissible inference that defendant knew the property was stolen' " (People v Jackson, 66 AD3d1415, 1416 [2009]; see People v Cintron, 95 NY2d 329, 332 [2000]). Here,the record establishes that defendant was found in possession of and the only occupant ofthe subject vehicle less than 12 hours from the time the vehicle was reported missing;that the vehicle was registered to persons other than defendant; that the vehicle containedpersonal effects of the registered owners; and that defendant abandoned the vehicle andfled from the police during a traffic stop. We conclude that the jury was entitled to inferfrom that circumstantial evidence that defendant knowingly possessed a stolen vehiclefor his own benefit (see § 165.45; Jackson, 66 AD3d at1416; see also People vKindler, 83 AD3d 964, 964-965 [2011], lv denied 17 NY3d 797 [2011];People v Pharr, 288 AD2d 239, 239 [2001], lv denied 97 NY2d 759[2002]). Even assuming, arguendo, that a different verdict on that count would not havebeen unreasonable, we cannot conclude that the jurors failed to give the evidence theweight it should be accorded (see People v Ohse, 114 AD3d 1285, 1286-1287 [2014],lv denied 23 NY3d 1041 [2014]; see generally Bleakley, 69 NY2d at495).
We also reject defendant's contention that the jury charge with respect to the crime ofunauthorized use of a vehicle in the second degree was ambiguous and a misstatement ofthe law that unconstitutionally required the jury to apply a statutory presumption. PenalLaw § 165.05 (1), a prerequisite to the application of section 165.06,specifies that, where a defendant "takes, operates, exercises control over, rides in orotherwise uses a vehicle . . . without the consent of the owner[,] [thedefendant] is presumed to know that he does not have such consent." Although a chargethat requires a jury to apply a presumption that shifts the burden of proof to the defendantis unconstitutional (see Sandstrom v Montana, 442 US 510, 524 [1979]), here therecord reveals that the charge sufficiently conveyed to the jury that "it had a choice as towhether to apply the statutory presumption" (People v Smith, 23 AD3d 415, 416 [2005], lvdenied 6 NY3d 781 [2006]). Thus, we conclude that the charge was proper.
Defendant's contention that he was deprived of a fair trial by prosecutorialmisconduct during summation is not preserved for our review (see People v Ross, 118 AD3d1413, 1416-1417 [2014], lv denied 24 NY3d 964 [2014]; see also People v Ettleman,109 AD3d 1126, 1126 [2013], lv denied 22 NY3d 1198 [2014]; People v Heck, 103 AD3d1140, 1143 [2013], lv denied 21 NY3d 1074 [2013]). In any event, thatcontention is without merit, inasmuch as we conclude that County Court's jury chargecured any potential prejudice caused by statements of the prosecutor on summation thatmay have shifted the burden of proof or constituted a misstatement of law (see People v Robinson, 111AD3d 1358, 1359 [2013], lv denied 22 NY3d 1141 [2014]; see alsoPeople v Copeland, 30 AD3d 1022, 1023-1024 [2006], lv denied 7NY3d 847 [2006]). Present—Centra, J.P., Fahey, Sconiers, Whalen and DeJoseph,JJ.