Opinion
February 10, 1986
Appeal from the Supreme Court, Suffolk County (McInerney, J.).
Judgment modified, as a matter of discretion in the interest of justice, by reversing defendant's conviction of illegal possession of a vehicle identification number plate, vacating the sentence imposed thereon, and ordering a new trial on that count. As so modified, judgment affirmed.
Order modified, as a matter of discretion in the interest of justice, by granting remission of $10,000 of the bail forfeited, which amount constitutes the amount of the bond posted with respect to a stay of execution pending appeal which was since vacated. As so modified, order affirmed, without costs or disbursements.
With respect to defendant's conviction of illegal possession of a vehicle identification number plate, it is evident that the indictment alleged a violation of Penal Law § 170.70 (3). The court, however, mistakenly charged the jury on the law as it pertains to Penal Law § 170.70 (1). A review of the two statutes indicates that the People must prove different elements in order to sustain a conviction for each crime. Consequently, it cannot be determined if the jury in fact found defendant guilty of the charged crime (see, People v. Melendez, 96 A.D.2d 517), and the conviction on that count must be reversed and a new trial ordered thereon.
We reject, however, defendant's contention that his conviction of criminal possession of stolen property in the first degree must also be reversed. Viewing the record from the perspective most favorable to the People, as we must (see, People v Malizia, 62 N.Y.2d 755, cert denied 469 U.S. 932), the evidence was sufficient to sustain the conviction on that count.
Nor do we find that the court committed reversible error when it permitted the People to introduce into evidence defendant's prior conviction for illegal possession of a vehicle identification number. Although the conviction was rendered in 1979 and this trial, for a crime occurring in 1982, did not take place until 1983, we note there is no per se rule as to when a prior conviction becomes so remote as to lose its probative value. Rather, the question of remoteness is a matter addressed to the discretion of the court (see, People v. Formato, 286 App. Div. 357, affd 309 N.Y. 979). Relevant to the court's determination is the purpose for which the evidence is being introduced. Where the prior conviction is probative on the issue of knowledge, rather than one of the other Molineaux exceptions, remoteness may be less controlling. For example, "[t]he passage of time and changing circumstances are more likely to significantly change one's intent than they are to obliterate knowledge once gained" (United States v. Rubio-Gonzalez, 674 F.2d 1067, 1075).
We have reviewed defendant's remaining contentions with respect to his conviction and find them to be without merit.
In the absence of prejudice to the People and in the interest of justice, we modify the amount of the bail forfeiture to the extent indicated (see, People v. Ruggiero, 69 A.D.2d 868). Bracken, J.P., Rubin, Lawrence and Eiber, JJ., concur.