Opinion
October 30, 1980
Appeal from the Criminal Court of the City of New York, Bronx County, EVE PREMINGER, J.
Mario Merola, District Attorney (Allan D. Marrus and Billie Manning of counsel), for appellant.
William E. Hellerstein and Barry D. Leiwant for Russell Thomas, respondent.
Howard A. Jaffe for Jose Ricio and others, respondents.
Order dated September 21, 1978 (PREMINGER, J.) reversed, on the law, complaints reinstated, and cases remanded to the Criminal Court, Bronx County, for further proceedings.
In this prosecution for theft of electrical services, the Criminal Court granted defendants' motion to dismiss upon the ground that the evidentiary presumption contained in subdivision 6 of section 165.15 Penal of the Penal Law is unconstitutional (People v Thomas, 95 Misc.2d 289). The presumption permits, but does not require, the trier of the facts to find that a consumer who has accepted or received the use and benefit of diverted or unmetered service has done so with knowledge of that condition. Inasmuch as the inference is permissive in nature — that is, one which the factfinder is free to reject even if not rebutted — its constitutional application is to be evaluated upon the basis of an entire record (Ulster County Ct. v Allen, 442 U.S. 140, 157-163). In most cases, the "rational connection" standard remains the test for determining the validity of permissive presumptions and, as recognized below, the rationality of the instant presumption has been consistently upheld (Eff-Ess, Inc. v New York Edison Co., 237 App. Div. 315; People v Robinson, 97 Misc.2d 47). It is only when the prosecution relies entirely upon the presumption to establish proof of the crime charged or an essential element thereof that it must be demonstrated that the basic fact proved (i.e., receipt of diverted service) supports the presumed fact (i.e., knowledge of such condition) beyond a reasonable doubt (Ulster County Ct. v Allen, supra, pp 165-167). Application of the appropriate standard may only be determined at trial, after the People have had the opportunity to present their proof; in the absence of a factual record, a constitutional challenge is premature (People v Neiss, 73 A.D.2d 938). Nor are we prepared to categorically state, as a matter of law, that it may never be presumed beyond a reasonable doubt that a person who has received electricity through a tampered or altered meter received that benefit knowingly. There are circumstances in which a jury could conceivably infer guilt beyond reasonable doubt upon the basis of the evidence, direct and circumstantial, before it (see Schlichting, Constitutionality of Statute Covering Meter-Tampering, NYLJ, Aug. 24, 1978, p 1, col 2).
Concur: DUDLEY, P.J., HUGHES and ASCH, JJ.