People v. Masters

• Decision Date: 27 June 1968
• Citation: 30 A.D.2d 723,291 N.Y.S.2d 230
• Parties: The PEOPLE of the State of New York, Respondent, v. Robert MASTERS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 230

291 N.Y.S.2d 230

30 A.D.2d 723

The PEOPLE of the State of New York, Respondent, v. Robert MASTERS, Appellant.

Supreme Court, Appellate Division, Third Department.

June 27, 1968.

Spencer G. Feldmann, Madison County Dist. Atty., Wampsville, for respondent.

John F. Henry, Mattydale, for appellant.

Before GIBSON, P.J., and HERLIHY, AULISI, STALEY and GABRIELLI, JJ.

GIBSON, Presiding Justice.

Appeal from a judgment of the County Court of Madison County entered upon a verdict convicting defendant of the crimes of burglary in the third degree and grand larceny in the second degree, involving the entry of an auto parts store and the theft therefrom of tools and equipment found by police five days later in the trunk compartment of an automobile operated by defendant. The search of the car followed its crash into a tree, following a high speed pursuit by police which began, apparently, only because of defendant's speeding. Aside from whatever inference might properly be drawn from defendant's flight immediately upon the activation of the police car's flasher lights and siren, the verdict rested solely on application of the rule '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 (which) rule has most frequently been applied in cases of burglary (citation) and larceny (citation) and receiving stolen goods (citation)'. (People v. Galbo, 218 N.Y. 283, 290, 112 N.E. 1041 1044; People v. Everett, 10 N.Y.2d 500, 225 N.Y.S.2d 193, 180 N.E.2d 556, cert. den. 370 U.S. 963, 82 S.Ct. 1593, 8 L.Ed.2d 830.) Contrary to the theory of the prosecution and the court upon the trial, the reference in the rule to 'unexplained or falsely explained' possession does not open the door to testimony that the defendant refused to explain or by remaining silent failed to explain, nor does it otherwise dilute his privilege against self-incrimination. Thus, the Court of Appeals reversed the conviction of a defendant apprehended with stolen sewing machines in his automobile, while his clothing bore traces of machine oil, grease and lint tending to connect him with the commission of the crime, because of testimony that 'repeatedly defendant refused to answer where he got this oil and grease upon his hands and clothing'; the court adhering to the established principle that an accused, held in custody is under no duty to speak and his silence may not be taken as inferential evidence of his guilt. (People v. Travato, 309 N.Y. 382, 386, 131 N.E.2d 557, 559.) In the case before us, a police officer was first examined as follows: 'Q Did you subsequently take (defendant) into custody? A Yes, sir. Q Did the Defendant, at any time, make any statement to you, regarding his possession of these items? A No, sir.' Thereupon the officer was repeatedly asked, over objection (on each occasion responding in the negative), whether defendant stated ...