Matter of Jashua A.

• Decision Date: 24 April 2008
• Docket Number: 3463.
• Parties: In the Matter of JASHUA A., a Person Alleged to be a Juvenile Delinquent, Appellant.
• Court: New York Supreme Court — Appellate Division

50 A.D.3d 528

856 N.Y.S.2d 580

2008 NY Slip Op 03712

In the Matter of JASHUA A., a Person Alleged to be a Juvenile Delinquent, Appellant.

3463.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided April 24, 2008.

Order of disposition, Family Court, Bronx County (Alma Cordova, J.), entered on or about October 26, 2006, which adjudicated appellant a juvenile delinquent, upon a fact-finding determination that he committed acts which, if committed by an adult, would constitute the crimes of grand larceny in the fourth degree, petit larceny, criminal mischief in the fourth degree, criminal possession of stolen property in the fourth and fifth degrees, possession of a stolen motor vehicle in violation of Vehicle and Traffic Law § 426 and unauthorized use of a vehicle in the third degree, and placed him on probation for a period of 18 months, unanimously modified, on the law, to the extent of vacating the findings as to grand and petit larceny, criminal mischief and fifth-degree possession of stolen property and

dismissing those counts of the petition, and otherwise affirmed, without costs.

Except as indicated hereinafter, the court's finding was based on legally sufficient evidence and was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]; Matter of Michael S., 262 AD2d 6 [1999], lv denied 94 NY2d 752 [1999]). The evidence established the knowledge element of the possessory crimes by application of the inference drawn from recent, exclusive, unexplained possession (see People v Galbo, 218 NY 283, 290 [1916]), and also established the corresponding element of unauthorized use of a vehicle by application of the statutory presumption of knowledge (Penal Law § 165.05 [1]), which the court implicitly applied. However, we dismiss the larceny and mischief counts on the ground that the evidence did not establish beyond a reasonable doubt that appellant actually stole or damaged the car. We dismiss the fifth-degree possession count as a lesser included offense of fourth-degree possession.

Concur — Tom, J.P., Mazzarelli, Williams and Sweeny, JJ.