Opinion
May 1, 1989
Appeal from the County Court, Nassau County (Delin, J.).
Ordered that the judgment is reversed, on the law, the indictment is dismissed, and the matter is remitted to the County Court, Nassau County, for the purpose of entering an order in its discretion pursuant to the CPL 160.50.
The defendant contends that the evidence supporting his convictions was legally insufficient since the People did not establish the element of possession with respect to the stolen car radio. We agree.
The only evidence connecting the defendant to the crimes for which he was convicted, was the fact that he was a passenger in the car where the stolen goods were found. When apprehended by the police, he was sitting in the rear of the vehicle behind the driver's seat. One of his codefendants was sitting in the driver's seat and the other was sitting in the front passenger seat. The stolen car radio was found hidden underneath the front passenger seat and was not visible from either the driver's or passenger's side without looking under the seat.
While a jury may properly infer possession of stolen property from circumstantial evidence, the circumstances must be established by clear and convincing evidence and must be of such a character as to exclude to a moral certainty every other inference but that of recent and exclusive possession (see, People v Foley, 307 N.Y. 490). Here, there was no showing that the defendant was aware of the presence of the radio and the radio was not in plain view (cf., People v Travato, 309 N.Y. 382), there was no evidence of the defendant's participation in the burglary (cf., People v Shurn, 69 A.D.2d 64), and the defendant was not exercising dominion and control over the car when apprehended (cf., People v Peters, 43 A.D.2d 599). Consequently, the evidence as a whole is not inconsistent with the defendant's innocence, nor does it exclude to a moral certainty every other reasonable hypothesis but guilt (see, People v Cleague, 22 N.Y.2d 363).
In view of our determination, we have not reviewed the remaining contentions. Mangano, J.P., Brown, Eiber and Sullivan, JJ., concur.