People v. Whitfield , 158 A.D.2d 922 ( 1990 )

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 AD2d 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 AD2d 705; People v Hunt, 112 AD2d 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 AD2d 448, 449). (Appeal from judgment of Supreme Court, Erie County, Egan, J. — criminal possession of stolen property, second degree.) Present — Callahan, J. P., Boomer, Pine, Balio and Davis, JJ.