People v. Abney , 162 A.D.2d 372 ( 1990 )

Judgment, Supreme Court, New York County (Shirley Levittan, J.), rendered February 3, 1988, convicting defendant, after a jury trial, of two counts of murder in the second degree and one count each of burglary in the first degree and robbery in the first degree and sentencing him to concurrent indeterminate terms of imprisonment of from 15 years to life on the murder counts and from 5 to 15 years each on the burglary and robbery counts, reversed, on the law, and the indictment dismissed.

Defendant was jointly tried with Terry Angel for the murder of Walter Grant, who was beaten across the head with a hammer during the course of a burglary of Grant’s apartment. Defendant was also charged with burglary and robbery in the connection with the incident. (A separate indictment against Angel and Ronald Reed, another alleged participant in the incident, charging them with burglary and related offenses, was dismissed against Angel on his speedy trial motion. Reed pleaded guilty to attempted burglary in the first degree in exchange for his promise—subsequently breached—to testify against defendant and Angel.)

In a decision released simultaneously herewith, this court has reversed Angel’s murder conviction and dismissed the indictment against him. The court found that the only direct evidence against Angel was the testimony of Rosa Robinson Cody, the victim’s girlfriend, that on the morning of the incident Angel was with defendant and Reed across the street from the victim’s apartment, the latter two carrying a television belonging to the victim, and Cody’s testimony that after following the three men to a game room alleged to be a "crack house”, she saw defendant say something to Reed, who then started towards Cody. This evidence was held insufficient to sustain Angel’s conviction. (People v Angel, 158 AD2d 145.)

Since the only distinction between the two cases—that defendant Raymond Abney was one of the persons carrying the television set—is without legal significance, we think that the evidence here is similarly insufficient. Our dissenting colleague relies on the presumption that flows from recent exclusive possession of stolen goods. While defendant’s possession of the television set may have been recent, it was not exclusive. Moreover, while recent exclusive possession of the fruits of a crime shortly after it occurred justifies, but does not require, the inference that the possessor was the thief (People v Shurn, 69 AD2d 64, 69; People v Donaldson, 107 AD2d 758, 759; see also, People v Baskerville, 60 NY2d 374, 382), we do not think that defendant’s conviction can be sustained on the basis of this circumstantial evidence alone. Since this is a purely circumstantial case, the People were obliged to exclude every reasonable hypothesis of innocence; the inference of guilt must be the only one that can be drawn from the evidence. (People v Sanchez, 61 NY2d 1022,1024.) At most, the evidence here would support a finding that defendant, acting in concert with Reed and Angel, criminally possessed the television. Since Reed admitted the burglary, it was possible that he burglarized the apartment alone or with someone other than defendant and that Reed or the other person or both assaulted Grant. Later, Reed could have sought out defendant or defendant and Angel, both of whom were known in the neighborhood, to help dispose of the property for a portion of the proceeds.

The cases cited by our dissenting colleague do not dictate a contrary result. In both People v Donaldson (107 AD2d 758, supra) and People v Velez (136 AD2d 753, Iv denied 71 NY2d 904) there was other, highly incriminating evidence pointing to the defendant’s guilt. In People v Ayers (135 AD2d 825) and People v Green (128 AD2d 890), the defendant’s recent exclusive possession warranted only one inference, i.e., guilt. That is not the case here.

In view of our determination dismissing the indictment, we find it unnecessary to address defendant’s remaining contentions. Concur—Murphy, P. J., Sullivan, Rosenberger and Asch, JJ.