People v. Clinkscales

• Decision Date: 14 December 1979
• Citation: 73 A.D.2d 815,423 N.Y.S.2d 738
• Parties: PEOPLE of the State of New York, Respondent, v. John CLINKSCALES, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 738

423 N.Y.S.2d 738

73 A.D.2d 815

PEOPLE of the State of New York, Respondent, v. John CLINKSCALES, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Dec. 14, 1979.

Nathaniel A. Barrell by Charles D. Halvorsen, Buffalo, for appellant.

Edward C. Cosgrove, Dist. Atty., by Mark Ackerman, Buffalo, for respondent.

Before CARDAMONE, J. P., and HANCOCK, SCHNEPP, CALLAHAN and MOULE, JJ.

MEMORANDUM:

Defendant appeals from his conviction for criminal possession of stolen property in the third degree (Penal Law, § 165.40) after a trial before the court sitting without a jury. Defendant and two co-defendants were indicted for criminal possession of stolen property in the first degree (Penal Law, § 165.50), burglary in the third degree (Penal Law, § 140.20), and grand larceny in the third degree (Penal Law, § 155.35), in connection with the discovery by police, acting pursuant to a search warrant, of stolen property (including stereo and phonographic components, lamps, tables, a chair and paintings) in a house located at 381/2 Glenwood Avenue in the City of Buffalo. The house was leased by co-defendant Alma Henderson. When the police arrived on November 18, 1977 to search the premises, defendant and both co-defendants were in the living room and the stolen property was found in a back extension of the house. In their search of a front bedroom, the police found male and female clothing, a rent receipt, an electric bill bearing Henderson's name and the 381/2 Glenwood Avenue address, and several documents with defendant's name on them: i. e., a Department of Social Services identification card, an Erie County medical identification card, an Erie County work relief unit slip, a Social Security card and an Erie County Department of Social Services paper bearing defendant's signature.

The court found all three defendants guilty of criminal possession of stolen property in the third degree as a lesser included offense of criminal possession of stolen property in the first and second degrees (Penal Law, §§ 165.50, 165.45). (The burglary and grand larceny counts were dismissed.) It determined that "all 3 of these defendants were residents of premises known as 38 and a half Glenwood Avenue in Buffalo"; "that as such residents they exercised dominion and control over the said stolen items for (sic) personal property located in the back room of said premises and that they therefore were in possession of said property"; and "that at the time said stolen property was discovered, it was in their the joint exclusive possession of all 3 of these defendants."

There was no proof that defendant was a lessee of 381/2 Glenwood Avenue or that he exercised any dominion or control over the premises or the back extension of the house where the property was found. On the contrary, the undisputed evidence was that the co-defendant, Henderson, was the sole lessee of 381/2 Glenwood Avenue. Nor was there any proof that defendant was at any time in actual possession of the property.

There was insufficient...