Opinion
July 6, 1965
Appeal by defendant from a judgment of the Supreme Court, Queens County, entered August 26, 1964 after a jury trial, convicting him of burglary in the third degree and of grand larceny in the second degree, and committing him to Elmira Reception Center for an indeterminate term. Judgment reversed on the law and a new trial granted. The findings of fact implicit in the jury's verdict are affirmed. In our opinion the trial court committed reversible error by charging the jury, in effect, that the defendant had the burden of proving that his possession of the fruits of the crime was attributable "to his having come into innocent possession thereof" ( People v. Papanier, 15 N.Y.2d 727, revg. 20 A.D.2d 672, on the dissenting opinion of HOPKINS, J.). Christ, Acting P.J., Rabin, Hopkins and Benjamin, JJ., concur; Hill, J. dissents and votes to affirm the judgment pursuant to section 542 of the Code of Criminal Procedure.