People v. Grossfeld

• Decision Date: 05 June 1995
• Citation: 216 A.D.2d 319,628 N.Y.S.2d 331
• Parties: The PEOPLE, etc., Respondent, v. Fred GROSSFELD, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 331

628 N.Y.S.2d 331

216 A.D.2d 319

The PEOPLE, etc., Respondent, v. Fred GROSSFELD, Appellant.

Supreme Court, Appellate Division Second Department.

June 5, 1995.

Morvillo, Abramowitz, Grand, Iason & Silberberg, P.C., New York City (Diana D. Parker and Stephen L. Ascher, of counsel; Yael Weinman, on the brief), for appellant.

James M. Catterson, Jr., Dist. Atty., Riverhead (Michael J. Miller, of counsel), for respondent.

Before BRACKEN, J.P., and ROSENBLATT, THOMPSON and HART, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Suffolk County (Leis, J.), rendered March 16, 1993, convicting him of criminal possession of stolen property in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is affirmed, and the matter is remitted to the Supreme Court, Suffolk County, for further proceedings pursuant to CPL 460.50(5).

The defendant contends that the application of the permissive statutory presumption under Penal Law § 165.55(2) to the facts of this case was unconstitutional. However, because defense counsel failed to raise this contention at trial, it is unpreserved for appellate review (see, CPL 470.05[2]; People v. Iannelli, 69 N.Y.2d 684, 512 N.Y.S.2d 16, 504 N.E.2d 383, cert. denied 482 U.S. 914, 107 S.Ct. 3185, 96 L.Ed.2d 673; People v. Dozier, 52 N.Y.2d 781, 436 N.Y.S.2d 620, 417 N.E.2d 1008). While the defendant raised this contention in his motion to set aside the verdict pursuant to CPL 330.30, this motion did not preserve the issue for appellate review (see, People v. Padro, 75 N.Y.2d 820, 552 N.Y.S.2d 555, 551 N.E.2d 1233).

In any event, the evidence indicates that the defendant triggered the presumption by failing to make any inquiry as to the legal right of possession of the person from whom he obtained the stolen property (see, People v. Agnello, 178 A.D.2d 414, 577 N.Y.S.2d 290). In addition, the defendant acquired the goods under suspicious circumstances. When the person who offered the goods to the defendant first contacted him, he told the defendant that the defendant did not need to know where he obtained the defendant's telephone number. Thereafter, the defendant travelled from his business on Long Island to a diner in Parsippany, New Jersey, to deliver a check to the mysterious seller. While the defendant later cooperated with the police investigation into the stolen goods, he did not turn over to the police his business records as requested. Therefore, there was a rational connection between the facts proved and the ultimate facts presumed (see, County Court of Ulster County v. 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 567).

The defendant also argues that he was deprived of the effective assistance of counsel at trial. The defendant contends that the trial counsel failed to pursue the defense that the...