Opinion
September 25, 1978
Appeal by defendant from a judgment of the County Court, Dutchess County, rendered July 26, 1977, convicting him of criminal possession of stolen property in the first degree, upon his plea of guilty, and imposing sentence. Judgment reversed, on the law, plea vacated and case remanded to the County Court for further proceedings consistent herewith. The County Court failed to pursue its inquiry as to whether defendant was culpably in possession of the sum of money statutorily prescribed by section 165.50 Penal of the Penal Law, i.e., that the value of the stolen property be in excess of $1,500. Defendant, when entering his plea, admitted to receiving only "five hundred bucks", his share for driving the vehicle which his confederate used to flee from the bank. In People v Pilat ( 35 A.D.2d 968, affd 29 N.Y.2d 777), we held that proof of the statutory criterion was a sine qua non for conviction. The conviction therein of criminal possession of stolen property in the second degree was reduced to one of criminal possession of stolen property in the third degree. We stated (pp 968-969): "There was no proof that at the time of the commission of the crime the value of the vehicle exceeded $250 (Penal Law, § 165.45). However, in our opinion, the proof adduced at trial was sufficient to establish defendant's guilt of criminal possession of stolen property in the third degree (Penal Law, § 165.40)." The superior court information charged that defendant, while acting in concert with another, possessed $1,600. That, however, cannot supply the deficiency in view of defendant's protest upon entering his plea. The County Court should have continued questioning defendant so as to establish the degree of the crime to which he was pleading (see People v Serrano, 15 N.Y.2d 304). Shapiro, J.P., Cohalan and O'Connor, JJ., concur; Hawkins, J., dissents and votes to affirm the judgment.