People v. Papanier

• Decision Date: 27 January 1964
• Parties: The PEOPLE of the State of New York, Respondent, v. Jordan PAPANIER, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 61

247 N.Y.S.2d 61

20 A.D.2d 672

The PEOPLE of the State of New York, Respondent, v. Jordan PAPANIER, Appellant.

Supreme Court, Appellate Division, Second Department.

Jan. 27, 1964.

Canio Louis Zarrilli, Staten Island, for appellant.

John M. Braisted, Jr., Dist. Atty., St. George, Staten Island, for respondent; Thomas R. Sullivan, Staten Island, of counsel.

Before BELDOCK, P. J., and KLEINFELD, CHRIST, BRENNAN and HOPKINS, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the former County Court, Richmond County, rendered January 19, 1962 after a jury trial, convicting him (and a codefendant) of grand larceny in the first degree, and sentencing him to serve a term of 5 to 7 1/2 years.

Judgment affirmed.

This defendant Papanier and one Sorgaard (whose separate appeal has been decided herewith, People v. Sorgaard, 20 A.D.2d 674, 246 N.Y.S.2d 1018) were found guilty of grand larceny in the first degree in that they stole a Plymouth station wagon belonging to one Timothy Donovan and in that they thereafter transferred its body to the chassis of another station wagon. In our opinion the proof of guilt as to both defendants was convincing.

One of the elements of proof was the false explanation by both defendants of their recent and exclusive possession of the stolen station wagon. When the court's charge to the jury is examined as a whole, the specific charge that the recent possession rule was an 'exception' to the presumption of innocence and that it 'survived' the presumption meant only that, if the jury believed that defendants falsely explained their recent and exclusive possession of the fruits of the crime, the inference that they were guilty of larceny was sufficient to overcome the presumption of innocence. Therefore the charge, viewed in its entirety, was correct (Stover v. People, 56 N.Y. 315; Knickerbocker v. People, 43 N.Y. 177).

In our opinion, the charge when read as a whole did not imply either that the presumption of innocence was destroyed by proof of the false explanation of recent and exclusive possession, or that there was a conflict of presumptions, or that the inference of guilt arising from recent possession was stronger than the presumption of innocence.

BELDOCK, P. J., and KLEINFELD, CHRIST and BRENNAN, JJ., concur.

HOPKINS, J., dissents and votes to reverse the judgment on the law and the facts, and to grant a new trial, with the following memorandum:

The defendant Papanier and one James Sorgaard were jointly tried under an indictment charging them with grand larceny in the first degree. The indictment alleged that they had stolen a 1958 Plymouth station wagon.

At the trial the defendant Papanier testified.

In its instructions to the jury the learned Trial Court stated that, until the contrary was proved, defendants were presumed to be innocent and that the presumption of innocence continued throughout the trial. The court then said: 'In this case there is a separate rule of law which survives this presumption; and later on in my charge I shall specifically instruct you with respect to this rule of law. It relates to recent and exclusive possession of the fruits of the crime by the defendants. I ask you to pay careful attention to my instruction with respect thereto.'

Further in its instructions to the jury, the Trial Court stated in substance that the jury would be justified in inferring the guilt of the defendants if the jury found beyond a reasonable doubt from the testimony of the case that the defendants were in recent and exclusive possession of the fruits of the crime, and that such possession was unexplained or was explained falsely. The Trial Court then said: 'Now in connection with recent and exclusive possession of the fruits of the crime, you will recall that this rule in effect, affects the presumption of innocence, which ordinarily runs throughout the trial until that presumption is removed by the jury. This is an exception but a rule of law.'

Further in its instructions to the jury, the Trial Court stated that the burden of proof beyond a reasonable doubt never shifted from the People to the defendants. The court then said: 'The presumption of innocence remains with the defendants throughout the trial, except in connection with my specific instructions as to recent and exclusive possession of the fruits of the crime; and the defendant need not prove the alibi.'

An exception was taken by counsel for the defendant Papanier to all such portions of the Trial Court's charge.

Thereafter counsel for the defendant Papanier requested the Trial Court to charge in substance that the jury was not required to find the defendant Papanier guilty from proof of recent possession of the fruits of the crime, but that such proof might be taken into consideration by them in determining whether the defendants' guilt had been proved beyond a reasonable doubt. The court refused to ...