Opinion
March 13, 1992
Appeal from the Supreme Court, Monroe County, Doyle, J.
Present — Boomer, J.P., Pine, Lawton, Davis and Doerr, JJ.
Judgment unanimously reversed on the law and indictment dismissed. Memorandum: Defendant's conviction for criminal possession of stolen property in the second degree must be reversed and the charge dismissed. It is essential in a prosecution for criminal possession of stolen property that the People prove that the property "was stolen by someone" (People v Corsetti, 10 A.D.2d 685; see also, People v Bryson, 118 A.D.2d 791, 792). Here, the People proved only that Doris Barry accidentally left her purse in a shopping cart after shopping at Wegmans. Proof that property is missing is not necessarily sufficient to support the conclusion that the property was stolen (see, People v Knapp, 46 A.D.2d 691). The People argue that their theory of the case was that the purse had been lost and defendant, the finder, failed to take reasonable measures to return it to Barry (see, Penal Law § 155.05 [b]). However, the court improperly refused the prosecutor's request to charge the jury on the law concerning larceny by acquisition of lost property (see, People v Colon, 28 N.Y.2d 1, 10-11, cert denied 402 U.S. 905). Consequently, the verdict cannot be sustained on that ground (see, People v Termotto [appeal No. 1], 155 A.D.2d 965, lv denied 75 N.Y.2d 925). In light of our resolution of this issue, it is unnecessary to reach defendant's remaining argument.