People v. Matthews , 175 N.Y.S.2d 235 ( 1958 )

Defendant was convicted in the Court of Special Sessions, on two counts, of the misdemeanors of criminally buying and receiving stolen property and criminally concealing and withholding stolen property (Penal Law, § 1308), respectively. The property in question was wearing apparel contained in a carton. The fact that the property in question was stolen by someone is an essential element of the crimes with which defendant is charged (People v. Walker, 198 N. Y. 329). There was no evidence before the trial court that the wearing apparel recited in the information was stolen or obtained from the possession of the shipper, consignee or express company under circumstances that would constitute larceny. Moreover, defendant did not expressly concede that there was an underlying larceny; nor does the record disclose, as claimed by the People, that court and counsel had proceeded on the assumption that the larceny was conceded for the purposes of trial (cf. People v. Jackerson, 247 N. Y. 36, 40). Since no effort was made to prove the larceny, and it may be within the power of the People to do so, the judgment of conviction should be reversed upon the law and upon the facts and a new trial ordered. Concur — Botein, P. J., M. M. Frank, Valente, Stevens and Bastow, JJ.