People v. Foley

Per Curiam.

In this case the convictions of the defendants of the crimes of burglary, third degree, and larceny, second degree, are predicated upon their alleged recent, conscious and exclusive possession of the fruits of those crimes. (Knickerbocker v. People, 43 N. Y. 177, 179-180 .) The Appellate Division has unanimously reversed the convictions on the law and has ordered a new trial for the reason that such alleged possession was not established by direct evidence but was based upon circumstantial evidence alone. That, the Appellate Division has held, makes the prosecution’s case subject to the infirmity that the presumption of guilt of the crimes of burglary and larceny is founded in turn on an inference of recent and exclusive possession of the fruits of the crimes.

We agree with the Appellate Division that defendants are entitled to a new trial but not for the reason assigned by the Appellate Division, viz., that recent and exclusive possession of the fruits of the crimes must be established by direct evidence. A jury may properly infer such possession from circumstances. (See People v. Wilson, 151 N. Y. 403 .) However, as is evident from the case cited, the circumstances must be established by clear and convincing evidence and must be of such a character *493 as, if true, to exclude to a moral certainty every other inference but that of recent and exclusive possession by defendants. While the testimony adduced presents many facts that are consistent with and point to recent and exclusive possession by defendants of the stolen articles, there is no one fact or series of facts which points inevitably thereto and it cannot be said that the evidence excludes to a moral certainty every other reasonable hypothesis but that defendants had conscious recent and exclusive possession of the stolen property. Therefore, a new trial must be had.

It is unnecessary to and we do not pass upon any other issue raised by defendants.

The order should be affirmed.

Conway, Desmond, Dye, Froessel and Van Voorhis, JJ., concur; Lewis, Ch. J., and Fuld, J., dissent in the following memorandum: We agree with the court’s formulation of the rule — that, where circumstantial evidence is relied upon, ‘‘ the circumstances must be established by clear and convincing evidence and must be of such a character as, if true, to exclude to a moral certainty every other inference but that of recent and exclusive possession by defendants ” (opinion, pp. 492-493; see, also, People v. May, 290 N. Y. 369, 375 ; People v. Woltering, 275 N. Y. 51, 61 ) —but it seems to us that the proof herein more than satisfies the test laid down. Indeed, we would say that defendants ’ guilt was established by the evidence, circumstantial though much of it is, almost to a mathematical certainty.

We would reverse the order of the Appellate Division and reinstate the judgments of the County Court.

Order affirmed.