People v. Baveghems
| Decision Date | 28 January 1985 |
| Citation | 107 A.D.2d 815,484 N.Y.S.2d 652 |
| Parties | The PEOPLE, etc., Respondent, v. Ronald BAVEGHEMS a/k/a Bob Mallon, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Hochbaum & Weiss, Mineola (Barry C. Weiss, Mineola, of counsel), for appellant.
Denis Dillon, Dist. Atty., Mineola (Anthony J. Girese and Peter R. Shapiro, Mineola, of counsel), for respondent.
Before GIBBONS, J.P., and O'CONNOR, NIEHOFF and LAWRENCE, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the County Court, Nassau County, rendered July 12, 1983, convicting him of criminal possession of stolen property in the second degree and criminal impersonation in the second degree, upon a jury verdict, and imposing sentence.
Judgment affirmed and the case is remitted to the County Court, Nassau County, for further proceedings pursuant to CPL 460.50 (subd. 5).
Defendant was found in possession of three stolen credit cards. After trial he was convicted, inter alia, of criminal possession of stolen property in the second degree (Penal Law, § 165.45, subd. 2). In determining whether defendant knew that the credit cards in his possession were stolen, the court instructed the jury that it could draw an inference based on subdivision 3 of section 165.55 of the Penal Law, which states: "A person who possesses two or more stolen credit cards is presumed to know that such credit cards were stolen".
Defendant now claims that use of this statutory permissive presumption deprived him of due process of law, inasmuch as it permitted the People to prove one element of a crime, to wit, knowledge that the cards were stolen, at a lesser standard than beyond a reasonable doubt. Defendant is incorrect. "Because permissive presumption leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof, it affects the application of the 'beyond a reasonable doubt' standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference" (Ulster County Ct. v. Allen, 442 U.S. 140, 157, 99 S.Ct. 2213, 2225, 60 L.Ed.2d 777). Under the facts of this case there was a rational relation between the fact proved (possession of the stolen cards) and the ultimate fact to be inferred (knowledge that the cards were stolen). Thus, the presumption was valid (Ulster County Ct. v. Allen, supra; Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57; People v. Neiss, 73...
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People v. Grossfeld
...Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777; Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57; People v. Baveghems, 107 A.D.2d 815, 484 N.Y.S.2d 652; People v. Oakley, 95 A.D.2d 944, 464 N.Y.S.2d The defendant also argues that he was deprived of the effective assistan......
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People v. Harrell
...was sufficient for purposes of the presumption, and need not have amounted to proof beyond a reasonable doubt (see, People v. Baveghems, 107 A.D.2d 815, 816, 484 N.Y.S.2d 652, citing Ulster County Ct. v. Allen, 442 U.S. 140, 157, 99 S.Ct. 2213, 2225, 60 L.Ed.2d 777, see also, at 167, 99 S.C......