Opinion
July 8, 1996
Appeal from the Family Court, Westchester County (Tolbert, J.).
Ordered that the appeal from the order entered May 5, 1995, is dismissed, without costs or disbursements, as no appeal lies as of right from such an order ( see, Family Ct Act § 365.1); and it is further,
Ordered that on the appeal from the dispositional order entered May 30, 1995, the fact-finding order entered February 27, 1995, and the order entered May 5, 1995, made upon reargument, are modified, on the law, by deleting therefrom the provisions finding that the appellant committed an act which, if committed by an adult, would have constituted the crime of criminal possession of stolen property in the fourth degree and substituting therefor provisions dismissing so much of the petition as alleged that he had committed such an act; and it is further,
Ordered that the dispositional order entered May 30, 1995, is modified, on the law, by deleting from the first decretal paragraph thereof the words "crimes of Criminal Possession of Stolen Property in the fourth degree, as defined by section 165.45 (5) of the Penal Law, a class E felony; and" and substituting therefor the words "crime of"; as so modified the dispositional order is affirmed, without costs or disbursements.
We agree with the appellant's contentions that the evidence was legally insufficient to prove that he knowingly was in possession of a stolen car. Knowledge that the property is stolen is a necessary element which may be provided by circumstantial evidence ( see, People v. Zorcik, 67 N.Y.2d 670). Thus, a person located in a stolen car can be found to be in knowing possession where, for example, ignition locks are damaged or some other conduct, such as flight, gives rise to a reasonable inference that the occupant knows that the car is stolen ( see, People v Middleton, 208 A.D.2d 958; Matter of Brenda D., 186 A.D.2d 65; People v. Miller, 114 A.D.2d 863). In the instant matter, there were insufficient indicia from which to reasonably infer that the appellant knew that the car, which he claimed that his friend had given him permission to drive, was stolen ( see, People v. Von Werne, 41 N.Y.2d 584; People v. Arnold, 194 A.D.2d 798; Matter of Antonio R., 186 A.D.2d 200; People v. Felder, 132 A.D.2d 705).
However, we find that the evidence was legally sufficient to sustain the finding that the appellant committed an act, which if committed by an adult, would have constituted the crime of unauthorized use of a vehicle in the third degree, since the trier of fact justifiably relied upon the statutory presumption (Penal Law § 165.05) that the appellant knew that he lacked the owner's consent. Under all the facts and circumstances presented, the weight of the credible evidence did not overcome the presumption in this case ( see, Matter of Antonio R., 186 A.D.2d 200, supra; People v. Cullen, 138 A.D.2d 501; People v Felder, 132 A.D.2d 705, supra). Bracken, J.P., Thompson, Krausman and Goldstein, JJ., concur.