Opinion
June 27, 1995
Appeal from the Family Court, New York County (Sara P. Schechter, J., Judith Scheindlin, J.).
The Family Court, in denying the motion to suppress and finding that the respondent had committed acts constituting the crimes of possession of a gambling device and criminal possession of a controlled substance in the third and fifth degrees, properly determined that the arrest of the respondent for possession of a gambling device constituted probable cause for the search and seizure, incident to the lawful arrest, of 36 vials of crack cocaine from his person ( People v. Davis, 192 A.D.2d 360, 362, lv denied 81 N.Y.2d 1071; People v. Sweeney, 73 A.D.2d 892, 893).
The totality of the circumstances, including the officer having observed the respondent and another individual gambling with dice in exchange for money on the street in violation of Penal Law § 225.30 (2), possession of a gambling device, fully support the conclusion that the police officer had reasonable grounds to believe that the respondent had just committed a crime, thus justifying his arrest and the subsequent search and seizure ( People v. Alston, 178 A.D.2d 153, 155, lv denied 80 N.Y.2d 827; People v. Rivera, 67 A.D.2d 867).
Nor did the Family Court, in finding that the respondent committed acts constituting unauthorized use of a motor vehicle err in applying the statutory presumption under Penal Law § 165.05 (1) that a person who uses a vehicle without the consent of the owner is presumed to know that he does not have such consent ( Matter of Brenda D., 186 A.D.2d 65), and in rejecting the inherently incredible and inconsistent testimony of the respondent and his witness that they did not know that their use of the vehicle at issue was unauthorized.
Viewing the evidence in the light most favorable to the presentment agency and giving it the benefit of every reasonable inference ( People v. Malizia, 62 N.Y.2d 755, 757, cert denied 469 U.S. 932), the evidence adduced at the fact-finding hearing, that the respondent, when arrested, was in the driver's seat of a stolen vehicle whose owner had not given the respondent or anyone else permission to use the vehicle, was sufficient to support the finding that the respondent had committed acts constituting a violation of Penal Law § 165.05, unauthorized use of a motor vehicle ( People v. Bradley, 143 A.D.2d 276, 277).
Concur — Murphy, P.J., Ellerin, Wallach, Rubin and Tom, JJ.