People v. Raco

• Decision Date: 24 May 1979
• Parties: The PEOPLE of the State of New York, Respondent, v. Richard S. RACO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 849

416 N.Y.S.2d 849

68 A.D.2d 258

The PEOPLE of the State of New York, Respondent, v. Richard S. RACO, Appellant.

Supreme Court, Appellate Division, Third Department.

May 24, 1979.

Douglas P. Rutnik, Albany (Peter Porco, Albany, of counsel), for appellant.

Sol Greenberg, Dist. Atty., Albany (George H. Barber, Albany, of counsel), for respondent.

Before MAHONEY, P. J., and SWEENEY, KANE, MAIN and HERLIHY, JJ.

OPINION FOR REVERSAL

HERLIHY, Justice.

The defendant, on or about April 16, 1976, applied for New York registration of a 1976 Ford vehicle with identification number F15 JKA 57079. In support of that application he submitted a Florida certificate of title and on that basis the local motor vehicle office supplied him with a certificate of registration for the described vehicle. On or about May 19, 1976 a New York State certificate of title was issued by the Department of Motor Vehicles for the described vehicle. On or about June 17, 1976 the defendant sold the vehicle to Arthur C. Coons for a substantial sum of money.

Subsequent to the sale to Coons, the Department of Motor Vehicles and the New York State Police became convinced that the Florida certificate of title was not valid and the police seized the vehicle from Coons on or about July 26, 1976.

The defendant was indicted in April of 1977 for the crime of criminal possession of stolen property (first degree) and also for the crime of criminal possession of a forged instrument, both crimes allegedly occurring on June 17, 1976. Following the trial and a jury verdict of guilty on both counts of the indictment, the court dismissed the criminal possession of a forged instrument count and it is not before us on this appeal. The defendant did not testify and the primary issue upon this appeal is whether or not the People proved the crime of criminal possession of stolen property beyond a reasonable doubt.

The issues discussed herein were raised on appeal by Points II and III of the "Pro se " brief.

The record is doubtful as to the sufficiency of the evidence to show that the vehicle sold by the defendant to Coons was in fact a stolen vehicle. The crime of criminal possession of stolen property requires a "knowledgeable" possession. The record establishes that whatever alterations in identification number occurred on this vehicle, they did not necessarily occur while in the defendant's possession. Further, there is no evidence to show that the presence or absence of the ordinary identification number emblems would probably alert a possessor to the fact that the vehicle was stolen (cf. People v. Bolling, 60 A.D.2d 655, 400 N.Y.S.2d 365).

The record establishes that the defendant obtained evidence of title on or about September 29, 1975, the issuing date on the Florida certificate of title. The record contains probative evidence which was apparently believed by the jury that the Florida certificate of title was counterfeit or bogus and, in fact, the State of Florida had never issued a title certificate for the vehicle described thereon.

In the case of People v. Von Werne, 41 N.Y.2d 584, 394 N.Y.S.2d 183, 362 N.E.2d 982, the court considered the question of knowledge of illegality when applied to the possession of automobiles as stolen property. It was specifically noted that to prove knowledge of illegality it was not necessary that circumstantial evidence " 'exclude "to a moral certainty" any reasonable hypothesis of innocence.' ". (41 N.Y.2d, at 590, 394 N.Y.S.2d, at 188, 362 N.E.2d, at 986). The defendant in his statement of facts notes that:

Sometime on or about November 29th or 30th, 1975, a 1976 Ford pickup truck disappeared from a dealer's lot in LaBelle, Florida. Sometime thereafter a bogus Florida certificate of title was generated bearing the name of the defendant-appellant, Richard S. Raco and dated September 29, 1975.

Notably, while the present record would tend to establish that the defendant might have received the "bogus" title by mail in an innocent manner, there is nothing to explain the fact that the title certificate was issued prior to a time when a legitimate owner of the vehicle at issue had been robbed of the vehicle. Further, the record establishes that the vehicle and the invalid Florida title certificate had different vehicle identification numbers, and there is nothing to explain how or why the defendant used the license plates issued for the identification number on his invalid title certificate as proper registration for the vehicle. In regard to the identification numbers not matching, there was testimony elicited by the defendant's counsel on cross-examination that the number on the invalid title certificate was changed by one digit from that on the vehicle "to avoid detection".

In addition to the proof relating to the vehicle identification number and the date of the title certificate and vehicle theft, there was evidence that a certain decal and plate having the appropriate vehicle identification number were removed from the vehicle.

While the foregoing evidence would not be overwhelming as to a certainty of guilty knowledge, it is sufficiently close in nature to that in People v. Von Werne (Supra ) to sustain the conclusion that the evidence was sufficient to establish guilt of criminal possession of stolen property beyond a reasonable doubt. (See People v. Silver, 39 N.Y.2d 99, 382 N.Y.S.2d 972, 346 N.E.2d 811; People v. Bolling, supra ; cf. People v. Knapp, 46 A.D.2d 691, 360 N.Y.S.2d 269.) The inferences and conclusions to be drawn from the evidence were for the jury.

The defendant in his supplemental (Pro se ) brief also contends that the prosecutor and court committed reversible error by permitting a police investigator to give testimony over objection that in his opinion:

(1) vehicles with missing identification plates and decals are stolen vehicles;

(2) that "professional" car thieves destroy original certificate numbers and get new title documents to sell the car;

(3) that "professionals" take cars from one state to another for registration.

A reading of the testimony admitted as expert testimony on the modus operandi of professional auto theft rings in the context of this record leaves no doubt that a juror would find it hard not to believe that the vehicle was stolen by the defendant as a "professional", and/or as part of a "ring". The respondent in his brief makes no attempt to justify the offer of such evidence except that it was from an "expert" and that the court has found the evidence to be relevant. In evaluating this evidence, it is necessary to note that ...