— Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lonschein, J.), rendered July 23, 1981, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence. [722] Ordered that the judgment is reversed, as a matter of discretion in the interest of justice, and a new trial is ordered.
At approximately 8:15 a.m. in the morning of July 5, 1979, James Ray was working in his auto repair shop when he was approached by two men who asked for a boost from a battery. Mr. Ray answered that he could not help them, but the men continued to approach. When they came nearer to Ray, one of the men drew a gun and directed Ray into the repair shop office. It was dark inside the office; light entered it only when a third person, another robber, would occasionally open the office door. Inside the office the two robbers stood behind Ray where he could not see them, and forced him to keep his head down. Eventually, the robbers pushed Ray into a dark bathroom and fled, taking his briefcase and a quantity of cash. Ray left the bathroom almost immediately, however, and saw the three outside the garage, just before they scattered in different directions. Ray then called the police.
Ray described the robbers as black male youths, between the ages of 20 and 23, 140 to 150 pounds, and five feet five inches, five feet six inches and five feet eight inches tall, respectively. Although at trial he testified that nearly $5,000 had been taken, he initially told police that the thieves had taken only the $370 in cash which was in his briefcase. Additionally, the briefcase contained, inter alia, a number of vehicle registrations as well as a credit card and a bank card. Approximately two weeks after the robbery, on July 19, 1979, the defendant Robert Robins was found in possession of several of these items.
At the trial, the complainant Ray identified the defendant as the man who had the gun and whom he later saw carrying his briefcase out of the garage. He no longer had any independent recollection of the descriptions he had given the police.
Ray testified further that in February of 1980, seven months after the robbery, he was called to the police station where two lineups were conducted. Ray stated that in each lineup, he selected the same man, the defendant, as the robber with the gun. However, according to the officer who arranged the two viewings, the defendant Robbins was not a participant in the first lineup, and at that time Ray identified another person, not a suspect, as one of the robbers. Ray did select the defendant in the second lineup.
The defendant testified on his own behalf that he was 5 feet 11 inches tall, and had been employed, at the time of the crime, as a driver for the W. D. Cab Service. He stated that [723] on July 19, 1979, he found a credit card, automobile registration and other papers in his cab while he was cleaning it out, and put them in his pocket to turn over to the company office. Later that evening, these articles were taken from him by a police officer. The defendant denied any involvement in the robbery. On cross-examination, however, he admitted that among the papers removed from him were certain credit cards belonging to persons other than the complainant.
Prior to the delivery of its charge, the trial court suggested to counsel that they examine the presumptions discussed in the case of People v Galbo (218 NY 283). That case concerns, inter alia, the inferences that may be drawn by a jury from the recent and exclusive possession of the fruits of a crime (People v Galbo, supra, pp 290-291). The trial court indicated its intent to give such a charge. The defense counsel objected, on the ground that the defendant’s possession of the credit cards and of the automobile registrations of the complainant some two weeks after the crime could not be said to be recent. The trial court overruled the objection, stating that the issue of recent possession was one for the jury. The court then instructed the jury as follows:
"Now, in this case the People claim that on July 19, 1979 the defendant was in possession of certain of the fruits of the crime. If you recall, Mr. Earl [sic] testified that not only was money taken as charged in the indictment, but in addition a briefcase was taken concerning — containing a number of auto registrations, a Dime Savings Bank credit card. According to the testimony, if you believe it beyond a reasonable doubt, one of those auto registrations and credit card were in the defendant’s possession on July 19, 1979 approximately fourteen days after the alleged commission of the crime.
T charge you that the law that applies and the law of the State is that recent and exclusive possession of the fruits of a crime if unexplained or if falsely explained, will justify the inference by a jury that the defendant was guilty of the robbery that took place on July 5,1979. You are not bound however to draw such an inference and you may reject it as you see fit.
"The defendant in explaining his possession of the credit card and the automobile registration testified that he found it with a number of other items in his taxicab. If you find his testimony to be truthful then he has explained his possession. On the other hand, if you find that he did not explain his possession of the items which were received in evidence or that in explaining that he gave what was a false explanation, then [724] you may draw an inference from the defendant that he committed the robbery ” (emphasis supplied).
The defendant objected to the charge arguing that no inference could be drawn because his possession was not recent, and also because an inference tended to shift the burden of proof with respect to the crime of robbery. The court gave the following additional charge: "the court: All right, your verdict in this case will be guilty or not guilty. I might tell you in connection with the definitions I gave you about recent and exclusive possession of the credit card and the driver’s license, I’m not going to go into the details of that, I’m going to ask you to consider exactly what I’ve told you. However, the People still have the burden of proof. They still have to overcome the presumption of innocence. But you may consider it in possession of a credit card as an inference that the defendant did commit the robbery if the People proved to your satisfaction beyond a reasonable doubt all of the other elements of the crime as I’ve stated them to you on those five elements that I spoke to you about in my charge” (emphasis supplied). No objection was taken to the additional charge, but the defendant requested that the court define recent and exclusive possession. The trial court then instructed the jury that they were to determine whether or not possession 14 days after the robbery was "recent”. The defendant was convicted of robbery in the second degree.
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— Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lonschein, J.), rendered July 23, 1981, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence. [722] Ordered that the judgment is reversed, as a matter of discretion in the interest of justice, and a new trial is ordered.
At approximately 8:15 a.m. in the morning of July 5, 1979, James Ray was working in his auto repair shop when he was approached by two men who asked for a boost from a battery. Mr. Ray answered that he could not help them, but the men continued to approach. When they came nearer to Ray, one of the men drew a gun and directed Ray into the repair shop office. It was dark inside the office; light entered it only when a third person, another robber, would occasionally open the office door. Inside the office the two robbers stood behind Ray where he could not see them, and forced him to keep his head down. Eventually, the robbers pushed Ray into a dark bathroom and fled, taking his briefcase and a quantity of cash. Ray left the bathroom almost immediately, however, and saw the three outside the garage, just before they scattered in different directions. Ray then called the police.
Ray described the robbers as black male youths, between the ages of 20 and 23, 140 to 150 pounds, and five feet five inches, five feet six inches and five feet eight inches tall, respectively. Although at trial he testified that nearly $5,000 had been taken, he initially told police that the thieves had taken only the $370 in cash which was in his briefcase. Additionally, the briefcase contained, inter alia, a number of vehicle registrations as well as a credit card and a bank card. Approximately two weeks after the robbery, on July 19, 1979, the defendant Robert Robins was found in possession of several of these items.
At the trial, the complainant Ray identified the defendant as the man who had the gun and whom he later saw carrying his briefcase out of the garage. He no longer had any independent recollection of the descriptions he had given the police.
Ray testified further that in February of 1980, seven months after the robbery, he was called to the police station where two lineups were conducted. Ray stated that in each lineup, he selected the same man, the defendant, as the robber with the gun. However, according to the officer who arranged the two viewings, the defendant Robbins was not a participant in the first lineup, and at that time Ray identified another person, not a suspect, as one of the robbers. Ray did select the defendant in the second lineup.
The defendant testified on his own behalf that he was 5 feet 11 inches tall, and had been employed, at the time of the crime, as a driver for the W. D. Cab Service. He stated that [723] on July 19, 1979, he found a credit card, automobile registration and other papers in his cab while he was cleaning it out, and put them in his pocket to turn over to the company office. Later that evening, these articles were taken from him by a police officer. The defendant denied any involvement in the robbery. On cross-examination, however, he admitted that among the papers removed from him were certain credit cards belonging to persons other than the complainant.
Prior to the delivery of its charge, the trial court suggested to counsel that they examine the presumptions discussed in the case of People v Galbo (218 NY 283). That case concerns, inter alia, the inferences that may be drawn by a jury from the recent and exclusive possession of the fruits of a crime (People v Galbo, supra, pp 290-291). The trial court indicated its intent to give such a charge. The defense counsel objected, on the ground that the defendant’s possession of the credit cards and of the automobile registrations of the complainant some two weeks after the crime could not be said to be recent. The trial court overruled the objection, stating that the issue of recent possession was one for the jury. The court then instructed the jury as follows:
"Now, in this case the People claim that on July 19, 1979 the defendant was in possession of certain of the fruits of the crime. If you recall, Mr. Earl [sic] testified that not only was money taken as charged in the indictment, but in addition a briefcase was taken concerning — containing a number of auto registrations, a Dime Savings Bank credit card. According to the testimony, if you believe it beyond a reasonable doubt, one of those auto registrations and credit card were in the defendant’s possession on July 19, 1979 approximately fourteen days after the alleged commission of the crime.
T charge you that the law that applies and the law of the State is that recent and exclusive possession of the fruits of a crime if unexplained or if falsely explained, will justify the inference by a jury that the defendant was guilty of the robbery that took place on July 5,1979. You are not bound however to draw such an inference and you may reject it as you see fit.
"The defendant in explaining his possession of the credit card and the automobile registration testified that he found it with a number of other items in his taxicab. If you find his testimony to be truthful then he has explained his possession. On the other hand, if you find that he did not explain his possession of the items which were received in evidence or that in explaining that he gave what was a false explanation, then [724] you may draw an inference from the defendant that he committed the robbery ” (emphasis supplied).
The defendant objected to the charge arguing that no inference could be drawn because his possession was not recent, and also because an inference tended to shift the burden of proof with respect to the crime of robbery. The court gave the following additional charge: "the court: All right, your verdict in this case will be guilty or not guilty. I might tell you in connection with the definitions I gave you about recent and exclusive possession of the credit card and the driver’s license, I’m not going to go into the details of that, I’m going to ask you to consider exactly what I’ve told you. However, the People still have the burden of proof. They still have to overcome the presumption of innocence. But you may consider it in possession of a credit card as an inference that the defendant did commit the robbery if the People proved to your satisfaction beyond a reasonable doubt all of the other elements of the crime as I’ve stated them to you on those five elements that I spoke to you about in my charge” (emphasis supplied). No objection was taken to the additional charge, but the defendant requested that the court define recent and exclusive possession. The trial court then instructed the jury that they were to determine whether or not possession 14 days after the robbery was "recent”. The defendant was convicted of robbery in the second degree.
We find that the trial court erred in its charge to the jury on the "recent and exclusive possession” of the fruits of the crime. Under the facts of the case, and given the weakness of the identification testimony, the jury could have found that defendant was merely the possessor of the stolen property. Moreover, contrary to the contentions of our dissenting colleague, there is evidence in the record from which the jury could have found that the defendant acquired possession after the theft. The defendant’s possession of the credit cards identified at trial as belonging to persons other than the complainant tends to enhance the likelihood of, and thus gives rise to an inference that, the defendant may have been merely the possessor of the complainant’s stolen card and other property rather than the perpetrator of the robbery charged. Therefore, the court was required to instruct the jury that there were two inferences which could have been drawn from the evidence: (1) that the defendant was involved in the robbery, or (2) that the defendant was merely the knowing possessor of the stolen property (see, People v Galbo, 218 NY 283, 290, supra; People v Baskerville, 60 NY2d 374, 382; People v Thorn[725] ton, 104 AD2d 426, 427; People v Shurn, 69 AD2d 64). The trial court charged only the former.
It is true that the defendant did not object to the charge as given on this specific ground. However, the defendant did object, and strenuously, to instructing the jury that any inference whatsoever might be drawn from his possession of the stolen items, as his possession was not sufficiently recent to give rise to an inference of criminality (see, e.g., People v Baskerville, 60 NY2d 374, 383, supra). Under the facts of this case the one-prong instruction citing only the crime of robbery was "erroneous and highly prejudicial”, warranting reversal even in the absence of a specific objection (see, People v Bannerman, 104 AD2d 419; People v Seaman, 96 AD2d 603, 604). Lawrence, J. P., Kooper, and Spatt, JJ., concur.