People v. Shurn

• Decision Date: 02 July 1979
• Citation: 418 N.Y.S.2d 445,69 A.D.2d 64
• Parties: The PEOPLE, etc., Respondent, v. Harry SHURN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 445

418 N.Y.S.2d 445

69 A.D.2d 64

The PEOPLE, etc., Respondent, v. Harry SHURN, Appellant.

Supreme Court, Appellate Division, Second Department.

July 2, 1979.

Daniel A. O'Connor, Larchmont, for appellant.

Carl A. Vergari, Dist. Atty., White Plains (Lois A. Cullen and Gerald D. Reilly, Asst. Dist. Attys., White Plains, of counsel), for respondent.

Before DAMIANI, J. P., and SUOZZI, LAZER and RABIN, JJ.

DAMIANI, Justice Presiding.

In this case, the victim of an alleged larceny and burglary died prior to trial. The principal issue on this appeal is whether the evidence established that a burglary and larceny had been committed and that the defendant was one of the perpetrators thereof.

In order to establish the charge of petit larceny, the People were required to prove (1) ownership of the property in question, (2) a taking, or asportation, of that property, (3) that the taking was without the owner's consent, (4) that it was done by the defendant, and (5) that it was done with the intent to deprive the owner of the property or to appropriate the same to the defendant or a third person (see Penal Law, § 155.25; § 155.05, subd. 1). In order to establish burglary in the third degree, the People were required to prove (1) that the defendant (2) knowingly entered or remained in a building without license or privilege to do so (3) with the intent to commit a crime therein (see Penal Law, § 140.20; § 140.00, subds. 2 and 5).

In support of these two charges the People proved that the alleged victim of the crimes, Mrs. Margaret Knight, lived in a small colonial house in the Village of Briarcliff Manor in Westchester County. The house shared a common driveway with the home of Mrs. Isabella Marsh and her son John. On September 12, 1973 Mrs. Marsh and Mrs. Knight had an appointment to go to the "Senior Club". Mrs. Marsh was to drive and, at about 10:55 A.M., she stopped her car in the driveway "right near" Mrs. Knight's home. She honked her horn, and about two minutes later, Mrs. Knight came out and got in the car. While waiting, Mrs. Marsh noticed that the bedroom window of Mrs. Knight's home was closed. The two ladies then left for the senior citizens club.

At about 11:50 A.M. John Marsh was returning home and stopped his car in the street because he saw a station wagon parked approximately 50 feet up the common driveway which blocked his access. As he waited, Mr. Marsh noticed two black men throwing things into the back of the station wagon. When these men saw Marsh waiting, they accelerated their actions, jumped in the car and came down the driveway towards him. As they passed, Mr. Marsh got a good look at the driver and took down the license plate number, but he did not take notice of the passenger who was looking in the opposite direction. He then ascended the driveway and saw that Mrs. Knight's bedroom window was open and the screen was "akimbo". The men had entered the house through this window. Upon making these observations, Mr. Marsh backed down the driveway and gave chase. When he lost sight of the car, he went to the headquarters of the Briarcliff Police Department where he told the police what had occurred and gave a description of the car and its driver and the license plate number. The police issued a radio alarm.

Detective Sergeant Richard J. Spota, of the North Tarrytown Police Department, testified that on the morning of September 12, 1973 he was in plain clothes and was patrolling in an unmarked car at the south end of the village. At about 12:00 noon, he received a radio transmission to be on the lookout for a green Chevrolet Vega, license plate number BCH 1. At about 12:20 P.M. he spotted this vehicle, occupied by two persons, proceeding at about 10 to 20 miles per hour on Cortlandt Street. He put on his siren to pull the vehicle over but it sped up to about 40 or 50 miles per hour. After a pursuit through several village streets, Detective Spota cut the vehicle off and apprehended its occupants. The driver was a man named Benjamin Richardson and the passenger was the defendant, Harry Shurn.

In the back of the station wagon, the police found a green and white tablecloth, an antique clock, silverware and a box of flatware. These items were photographed at the police station and were then turned over to Mrs. Knight. Mr. Marsh testified he helped Mrs. Knight bring them back to her home where he placed the clock on a "highboy" and the silverware on Mrs. Knight's table. Mrs. Marsh, who had known Mrs. Knight for about 30 years, was shown the photograph taken by the police and testified that the antique clock and silver depicted therein all belonged to Mrs. Knight. John Marsh also testified that Benjamin Richardson, the man who was driving the car when stopped by Detective Spota, was the person who was driving when he observed it descending his driveway.

On appeal, defendant contends that the People failed to prove a prima facie case of burglary in the third degree and petit larceny. The fact of ownership of property may be proved by persons other than the owner (52A C.J.S. Larceny § 134, p. 669) and here, the testimony of Mrs. Marsh constituted direct evidence that the clock and silver belonged to Mrs. Knight. The testimony of Detective Spota that these items were found in a car occupied by the defendant some distance from Mrs. Knight's home established the asportation of the property by direct evidence.

It is the established rule that lack of consent to the taking of property may be proven by circumstantial evidence if the owner is dead or incompetent to testify (52A C.J.S. Larceny § 135, p. 671; Cherry v. State, 120 Tex.Cr.R. 590, 46 S.W.2d 683; State v. Skillings, 99 N.H. 427, 113 A.2d 490). In this case the testimony established that when Mrs. Knight left her home the bedroom window was closed and that after the property had been taken the window was found open and the screen had been forced. Mr. Marsh testified, without objection, that the intruders had gained entry through the window and that they had hastily departed from the driveway when they discovered that he was watching. The jury could properly infer from this evidence of forced entry and flight that the taking of the clock and silver was without the consent of the owner. In addition this proof was competent to establish one of the elements of the burglary prosecution, namely, that the intruders knowingly entered Mrs. Knight's home without licence or privilege to do so. The jury could also infer from these circumstances that the persons who forcibly entered Mrs. Knight's home and removed her property without consent, intended to commit the crime of larceny therein and intended to appropriate the clock and silver to themselves (12 C.J.S. Burglary § 55; 52A C.J.S. Larceny § 136(1), pp. 673-674).

Having thus established the fact that a larceny and burglary had taken place, the People were next required to fix the identity of the criminals. The salient evidence on this point was that two men were seen leaving Mrs. Knight's house driving a green Chevrolet Vega station wagon bearing license plate number BCH 1. Within one-half hour thereafter, a police officer observed that vehicle being driven in a nearby community. After a high speed chase, the car was stopped and the occupants were arrested. The driver was a man named Benjamin Richardson and the passenger was defendant. In the back of the station wagon, open to view, were the stolen antique clock and silver. The testimony of John Marsh that Benjamin Richardson, the driver arrested by Detective Spota, was the same person who drove the car from the place where the crime was committed, constituted direct evidence that Richardson was one of the two thieves. There was, however, no direct evidence that the defendant was the second thief.

One of the classical methods of fixing the identity of a criminal by circumstantial evidence is to infer that fact from the accused's possession of the fruits of a crime (1 Wigmore, Evidence (3d ed.), § 152; Knickerbocker v. People, 43 N.Y. 177). It is the rule in this State that the conscious, recent and exclusive possession of the fruits of a crime constitutes prima facie evidence of criminality (People v. Galbo, 218 N.Y. 283, 112 N.E. 1041; Knickerbocker v. People, supra; People v. Foley, 283 App.Div. 239, 127 N.Y.S.2d 52, affd. 307 N.Y. 490, 121 N.E.2d 516). Ordinarily, where the prosecution proves that a larceny was committed and that the defendant was in conscious, recent and exclusive possession of the stolen goods, the jury is warranted in drawing the inference that the defendant was the thief (People v. Galbo, supra, 218 N.Y. pp. 290-291, 112 N.E. p. 1045, Richardson, Evidence (Prince, 10th ed.), § 88, p. 63; 1 Wigmore, Evidence (3d ed.), § 152, p. 598). Thus, standing alone, the inference arising from guilty possession is sufficient to constitute prima facie proof of the identity of the possessor as the perpetrator of the crime. Other facts in the case may, however, negate or change the nature of the inference to be drawn from guilty possession (see People v. Galbo, supra, pp. 291-294, 112 N.E. pp. 1044-1045). The defendant himself may negate the inference of theft by offering a credible explanation to the effect that he acquired the property legally, or he may change the nature of the inference by explaining that he was merely a receiver of the stolen goods.

The inference to be drawn from the recent and exclusive possession of stolen goods is one of the oldest means of proving identity known to Anglo-American jurisprudence, dating back at least to the seventh century (see Barnes v. United States, 412 U.S. 837, 844, n.5, 93 S.Ct. 2357, 37 L.Ed.2d 380). Its roots in the common law arise from ordinary common sense and practical necessity. Because larceny, among other crimes, is often committed under covert circumstances, direct evidence of the identity of the thief is frequently unavailable to the prosecution (Knickerbocker v....