Opinion
February 2, 1990
Appeal from the Supreme Court, Erie County, Egan, J.
Present — Callahan, J.P., Boomer, Pine, Balio and Davis, JJ.
Judgment unanimously reversed on the law and indictment dismissed. Memorandum: Defendant was convicted of criminal possession of stolen property in the second degree based upon his possession of a suitcase containing stolen photography equipment at the time of his arrest on unrelated charges. Defendant initially told police that the property was his. When defendant was told a few days later, however, that the property had been stolen and that he had been charged with criminal possession, he told an officer that the property belonged to someone else. Defendant contends on appeal that the People failed to present legally sufficient evidence to support a finding that he knowingly possessed stolen property. We agree.
Evidence that defendant made contradictory statements to police was insufficient to prove to a moral certainty that defendant knew the property was stolen (see, People v Rolland, 128 A.D.2d 650). The People failed to request an instruction on the inference arising from the recent and exclusive possession of the fruits of a crime and thus, the jury could not consider the inference in arriving at its verdict (People v Felder, 132 A.D.2d 705; People v Hunt, 112 A.D.2d 781). In the absence of the inference, the proof was insufficient to establish that defendant knew the photography equipment was stolen, and the indictment must be dismissed (see, People v Hunt, supra; People v Edwards, 104 A.D.2d 448, 449).