Opinion
June 1, 1999.
Appeal from the Family Court, New York County (Sheldon Rand, J.).
The findings were based on legally sufficient evidence and were not against the weight of the evidence. There was ample evidence supporting the knowledge element of criminal possession of stolen property by application of the inference drawn from recent, exclusive, unexplained possession ( see, People v. Galbo, 218 N.Y. 283, 290). the evidence provided no innocent explanation of the possession of the subject vehicle by appellant, a 14-year-old, at 1:30 A.M., not more than 16 hours after it had been stolen, along with its keys, from its lawful custodian. Likewise, there was ample evidence supporting the knowledge element of unauthorized use of a vehicle by application of the statutory presumption of knowledge (Penal Law § 165.05). Appellant's contention that the lack of consent element required testimony from the title owner, as opposed to the lawful custodian, is without merit ( Matter of Dwayne G., 181 A.D.2d 452).
However, since criminal possession of stolen property in the fifth degree is a lesser included offense of criminal possession of stolen property in the fourth degree, that count of the petition is dismissed.
Concur — Ellerin, P. J., Nardelli, Williams, Saxe and Friedman, JJ.