People v. Diaz , 54 A.D.2d 543 ( 1976 )

Judgment of the Supreme Court, Bronx County, rendered September 26, 1975, convicting appellant after a jury trial of the crimes of grand larceny in the second degree and illegal possession of a vehicle identification number plate (five counts) and sentencing him to concurrent indeterminate terms thereon, unanimously reversed, on the law, and the indictment as against him dismissed. The charges stemmed from the theft of an automobile. The vehicle was located in a garage in which four men, including appellant, were present. Two were inside the vehicle, in the process of stripping it; two, including appellant, were standing alongside the vehicle. Several license plates belonging to other vehicles were nearby. In response to an on-the-scene inquiry by the police, appellant stated he used the garage to park his taxi and had no knowledge of what "was going on”. He presented no witnesses and offered no evidence. The testimony of the People’s witnesses failed to show that appellant was engaged in stripping the vehicle. There was no evidence that he had actual possession of the vehicle or plates. Nor was there any evidence that appellant was the lessee or owner of the garage or exercised such control over the premises that it could be said he was in constructive possession of the vehicle or plates. His mere presence in the garage was insufficient to establish any criminal conduct on his part or to connect him with the crimes charged. Concur&emdash; Markewich, J. P., Murphy, Birns, Silverman and Capozzoli, JJ.