People v. Couvertier

Judgment, Supreme Court, Bronx County, rendered on October 30, 1974, convicting defendant, after trial before Reilly, J., and a jury, of the crime of possession of gambling records, unanimously reversed, on the law, and matter remanded for a new trial. The court erroneously charged concerning the statutory presumption applicable to one possessing gambling records. Subdivision 1 of section 225.35 of the Penal Law provides as follows: "1. Proof of possession of any gambling device or of any gambling record specified in sections 225.15 and 225.20, is presumptive evidence of possession thereof with knowledge of its character or contents.” The court herein charged that, once the People proved possession of a policy slip, "the law presumes he had such possession with knowledge of its character or its contents. The law states the mere possession connotes knowledge if such presumption is not rebutted by the defendant”. The jury was not told that the presumption was merely permissive. This was a fatal omission, especially so when this portion of the charge was preceded by the statement of the court that "the law does not require that the guilty knowledge be proven beyond a reasonable doubt”. Care should have been exercised that the jury would not understand that the presumption had the effect of directing a verdict of guilty. (People v Leyva, 38 NY2d 160, 171 .) On this record defendant is entitled to a new trial. Concur—Murphy, J. P., Birns, Capozzoli, Lane and Nunez, JJ.