Opinion
June 19, 1990
Appeal from the Supreme Court, New York County (Thomas B. Galligan, J.).
After enjoying his customary midday break by listening to his radio/cassette player at his new Washington Heights apartment, complainant, a livery cab driver, left the apartment and prepared his cab for his afternoon rounds. He picked up a fare (defendant) two blocks away from his apartment and realized that defendant had possession of his radio/cassette player which he had just left on his kitchen table. Complainant flagged down passing police patrolmen who chased the fleeing defendant and recovered a wristwatch, also identified by the driver as having been taken from his apartment. In a body search at the precinct, the police recovered one of a tandem of tools generally used for picking locks. A police lock expert testified that the companion device, which was not recovered, could have been substituted with a paper clip or bobby pin, innocuous items which could easily have been disposed of without notice.
Defendant has failed to overcome the presumption of burglary created by his recent, exclusive and unexplained possession of stolen property (People v. Pittman, 125 A.D.2d 342, lv denied 69 N.Y.2d 749). The facts are inconsistent with defendant's suggestion that he was a mere possessor of stolen property (People v. Green, 128 A.D.2d 890). In the absence of evidence that someone else may have committed the burglary, an inference of defendant's guilt was reasonably supported (People v. Slater, 115 A.D.2d 672, lv denied 67 N.Y.2d 657; cf., People v Baskerville, 60 N.Y.2d 374).
Concur — Kupferman, J.P., Sullivan, Rosenberger, Kassal and Smith, JJ.