People v. Cordero
| Decision Date | 13 July 1959 |
| Citation | 189 N.Y.S.2d 559,18 Misc.2d 430 |
| Parties | PEOPLE of the State of New York v. Wilfredo CORDERO. City Magistrate's Court of City of New York, Adolescent Court, Borough of Brooklyn |
| Court | New York Magistrate Court |
Edward S. Silver, Dist. Atty. of Kings County, by Lawrence W. Pierce, Brooklyn, for the People.
Furey, Wolin & Byrne, by Herman G. Wolin, Brooklyn, for defendant.
REUBEN LEVY, City Magistrate.
The defendant is charged with grand larceny under Penal Law, Sec. 1293-a, which reads in part as follows:
'Any person, who * * * shall, without the consent of the owner take, use or operate * * * an automobile * * * for his own profit, use or purpose * * * is guilty of larceny.'
Defendant, when apprehended, was a passenger in a recently stolen automobile, which was being driven by the confessed thief. On being questioned, the defendant, who was in the car without the owner's permission, made no statement.
The defendant, of course, has a constitutional right to remain silent. Nevertheless, his unexplained presence in the stolen car raises the presumption against him of larceny as defined in Penal Law, Sec. 1293-a. In People v. Galbo, 1916, 218 N.Y. 283, 290, 112 N.E. 1041, 1044, 2 A.L.R. 1220, the Court said that 'recent and exclusive possession of the fruits of crime, if unexplained or falsely explained, will justify the inference that the possessor is the criminal.'
It is the defendant's contention that the only one chargeable with 'exclusive possession' is the driver of the automobile. But the prohibition of Penal Law, Sec. 1293-a extends to those who 'use' as well as those who 'operate' an automobile without the owner's consent. It may be added that the sense of the word 'exclusive' does not rule out such possession by two or more persons under appropriate circumstances. State v. Oliver, 1946, 355 Mo. 173, 195 S.W.2d 484, 486; Weisman v. United States, 8 Cir., 1924, 1 F.2d 696, 698-699.
Defendant is held for the Grand Jury. Parole is continued.
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United States ex rel. B. v. Shelly
...Penal Law § 5.05(3), effective Sept. 1, 1967; In Re Anonymous, 26 A.D.2d 673, 272 N.Y.S.2d 399 (2d Dep't 1966); People v. Cordero, 18 Misc.2d 430, 189 N.Y.S.2d 559 (N.Y.C. Magistrate's Court 1959). The petitioner had, in effect, "let the cat out of the bag." United States v. Bayer, 331 U.S.......
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Wahler v. Thompson
...Law. A similar conclusion has been reached in a construction of 'use or operate' in section 1293-a of the Penal Law (People v. Cordero, 18 Misc.2d 430, 189 N.Y.S.2d 559). Still another statute involving the expression 'using or operating' a car has been judicially construed. The Court's rea......
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People v. Rinn
...It was never establsihed that the defendant at the time he got in the car knew it was stolen. The People rely upon People v. Cordero, 18 Misc.2d 430, 189 N.Y.S.2d 559, which held that a person in a stolen car who gave no explanation could be held for the action of the Grand Jury because the......