The People, etc., respondent, v. Blake Wingate, appellant. (2010)

Argued-January 4, 2010

DECISION & ORDER

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Spires, J.), rendered July 27, 2005, convicting him of criminal possession of stolen property in the fourth degree and criminal possession of a controlled substance in the seventh degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, on the law and as a matter of discretion in the interest of justice, by vacating the conviction of criminal possession of stolen property in the fourth degree and the sentence imposed thereon, and dismissing that count of the indictment;  as so modified, the judgment is affirmed.

Although the defendant's contention that the evidence was legally insufficient to establish that he was in possession of the stolen van is not preserved for appellate review (see CPL 470.05[2];  People v. Hawkins, 11 NY3d 484, 492;  People v. Gray, 86 N.Y.2d 10, 19-21), we nevertheless reach the contention in the exercise of our interest of justice jurisdiction (see CPL 470.15[3][c] ), and vacate the conviction of criminal possession of stolen property in the fourth degree (see Penal Law § 165.45[5] ).   Viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621), we find that the evidence that the defendant was briefly seated in the parked van before the police arrived was insufficient to establish the element of possession, as a person's mere presence in a vehicle does not support a rational inference that he or she exercised dominion and control over it (see Penal Law 10.00[8];  People v. Rivera, 82 N.Y.2d 695;  Matter of Gary S., 197 A.D.2d 580, 581;  People v. Gregory, 147 A.D.2d 497;  People v. Brown, 115 A.D.2d 791).

The defendant's remaining contentions are without merit, or need not be reached in light of our determination.

SKELOS, J.P., SANTUCCI, DICKERSON and ROMAN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court