People v. Mitchell

• Decision Date: 22 January 1996
• Citation: 637 N.Y.S.2d 176,223 A.D.2d 655
• Parties: The PEOPLE, etc., Respondent, v. Marc MITCHELL, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 176

637 N.Y.S.2d 176

223 A.D.2d 655

The PEOPLE, etc., Respondent, v. Marc MITCHELL, Appellant.

Supreme Court, Appellate Division Second Department.

Jan. 22, 1996.

Jeffrey Galperin, Port Chester, for appellant.

Jeanine Pirro, District Attorney, White Plains (John Charles Zuroski and Maryanne Luciano, of counsel), for respondent.

Before O'BRIEN, J.P., and SULLIVAN, COPERTINO and JOY, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the County Court, Westchester County (Lange, J.), rendered March 12, 1993, convicting him of assault in the first degree (three counts) and criminal possession of stolen property in the third degree, after a nonjury trial, and imposing sentence.

ORDERED that the judgment is affirmed.

The defendant was seen driving a stolen vehicle, and minutes later was observed as a passenger in that vehicle during a police pursuit, which resulted in the stolen car colliding with two other vehicles, seriously injuring two individuals and causing the death of another.

The evidence adduced at trial was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. It is well established that mere presence as a passenger in a stolen vehicle, without more, is insufficient to establish possession (see, Penal Law § 10.00[8]; see also, People v. Katende, 198 A.D.2d 522, 523, 604 N.Y.S.2d 213; Matter of Garfield H., 185 A.D.2d 846, 587 N.Y.S.2d 351), even where the passenger knows that the vehicle in which he is riding is stolen (see, People v. Rivera, 185 A.D.2d 751, 587 N.Y.S.2d 329, affd. 82 N.Y.2d 695, 697, 601 N.Y.S.2d 470, 619 N.E.2d 407). However, in this case a witness observed the defendant driving the stolen vehicle only minutes before the fatal car accident. At the time of the incident, neither the defendant nor the codefendant need have possessed the stolen vehicle to the exclusion of the other, since possession is joint where it is shown that the two men acted together in their possession of the vehicle (see, People v. Flayhart, 72 N.Y.2d 737, 741, 536 N.Y.S.2d 727, 533 N.E.2d 657; People v. Pugliese, 131 A.D.2d 789, 517 N.Y.S.2d 77).

The defendant further challenges the credibility of the witness who observed him driving the car. However, resolution of issues of the credibility, as well as the weight to be accorded the evidence presented, are primarily questions to be determined by the finder of fact, which saw and heard the witnesses (see, People v. Gaimari, 176 N.Y. 84, 94, ...