        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1127
KA 10-00817
PRESENT: CENTRA, J.P., FAHEY, SCONIERS, WHALEN, AND DEJOSEPH, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

CARL WATERFORD, DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JAMES ECKERT OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O’BRIEN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (John Lewis
DeMarco, J.), rendered February 3, 2010. The judgment convicted
defendant, upon a jury verdict, of criminal possession of stolen
property in the fourth degree and unauthorized use of a vehicle in the
second degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
after a jury trial of criminal possession of stolen property in the
fourth degree (Penal Law § 165.45 [5]) and unauthorized use of a
vehicle in the second degree (§ 165.06). Viewing the evidence in
light of the elements of the crime of criminal possession of stolen
property in the fourth degree as charged to the jury (see People v
Danielson, 9 NY3d 342, 349), we reject defendant’s contention that the
verdict with respect to that crime is against the weight of the
evidence (see generally People v Bleakley, 69 NY2d 490, 495).
“ ‘[D]efendant’s knowledge that property is stolen may be proven
circumstantially, and the unexplained or falsely explained recent
exclusive possession of the fruits of a crime allows a [trier of fact]
to draw a permissible inference that defendant knew the property was
stolen’ ” (People v Jackson, 66 AD3d 1415, 1416; see People v Cintron,
95 NY2d 329, 332). Here, the record establishes that defendant was
found in possession of and the only occupant of the subject vehicle
less than 12 hours from the time the vehicle was reported missing;
that the vehicle was registered to persons other than defendant; that
the vehicle contained personal effects of the registered owners; and
that defendant abandoned the vehicle and fled from the police during a
traffic stop. We conclude that the jury was entitled to infer from
that circumstantial evidence that defendant knowingly possessed a
stolen vehicle for his own benefit (see § 165.45; Jackson, 66 AD3d at
                                 -2-                          1127
                                                         KA 10-00817

1416; see also People v Kindler, 83 AD3d 964, 964-965, lv denied 17
NY3d 797; People v Pharr, 288 AD2d 239, 239, lv denied 97 NY2d 759).
Even assuming, arguendo, that a different verdict on that count would
not have been unreasonable, we cannot conclude that the jurors failed
to give the evidence the weight it should be accorded (see People v
Ohse, 114 AD3d 1285, 1286-1287, lv denied 23 NY3d 1041; see generally
Bleakley, 69 NY2d at 495).

     We also reject defendant’s contention that the jury charge with
respect to the crime of unauthorized use of a vehicle in the second
degree was ambiguous and a misstatement of the law that
unconstitutionally required the jury to apply a statutory presumption.
Penal Law § 165.05 (1), a prerequisite to the application of section
165.06, specifies that, where a defendant “takes, operates, exercises
control over, rides in or otherwise uses a vehicle . . . without the
consent of the owner[,] [the defendant] is presumed to know that he
does not have such consent.” Although a charge that requires a jury
to apply a presumption that shifts the burden of proof to the
defendant is unconstitutional (see Sandstrom v Montana, 442 US 510,
524), here the record reveals that the charge sufficiently conveyed to
the jury that “it had a choice as to whether to apply the statutory
presumption” (People v Smith, 23 AD3d 415, 416, lv denied 6 NY3d 781).
Thus, we conclude that the charge was proper.

      Defendant’s contention that he was deprived of a fair trial by
prosecutorial misconduct during summation is not preserved for our
review (see People v Ross, 118 AD3d 1413, 1416-1417, lv denied 24 NY3d
964; see also People v Ettleman, 109 AD3d 1126, 1126, lv denied 22
NY3d 1198; People v Heck, 103 AD3d 1140, 1143, lv denied 21 NY3d
1074). In any event, that contention is without merit, inasmuch as we
conclude that County Court’s jury charge cured any potential prejudice
caused by statements of the prosecutor on summation that may have
shifted the burden of proof or constituted a misstatement of law (see
People v Robinson, 111 AD3d 1358, 1359, lv denied 22 NY3d 1141; see
also People v Copeland, 30 AD3d 1022, 1023-1024, lv denied 7 NY3d
847).




Entered:   January 2, 2015                     Frances E. Cafarell
                                               Clerk of the Court
