Opinion
April 27, 1972
Appeal from a judgment of the County Court of Montgomery County, rendered April 30, 1969, upon a verdict convicting defendant of the crime of criminal possession of stolen property in the third degree (Penal Law, § 165.40). The gravamen of this crime is possession of stolen property with knowledge of its stolen character (Practice Commentary by Richard G. Denzer and Peter McQuillan, McKinney's Cons. Laws of N.Y. Book 39, Penal Law, § 165.40, p. 518). "A finding of carelessness, negligence or indolence in investigation is not a substitute for guilty knowledge" ( People v. Checkman, 284 App. Div. 44, 45), the correct test being actual knowledge, not negligence in failing to make reasonable inquiry ( People v. Price, 19 A.D.2d 730, cert. den. 390 U.S. 908). Here, there was no direct or circumstantial proof of actual knowledge and the prosecution did not meet its burden of submitting evidence on which the jury could find beyond a reasonable doubt that defendant actually knew that the tires which he purchased were stolen. Judgment reversed, on the law and the facts, and indictment dismissed. Herlihy, P.J., Greenblott, Cooke, Simons and Kane, JJ., concur.