STANDING OUTSIDE A VEHICLE AND REACHING INSIDE IS NOT “OCCUPYING” THE VEHICLE SUCH THAT THE AUTOMOBILE PRESUMPTION OF POSSESSION OF THE CONTENTS OF A VEHICLE CAN BE CHARGED TO THE JURY (SECOND DEPT). ​

The Second Department, reversing defendant’s possession of a weapon conviction, determined the judge should not have charged the jury with the automobile presumption which ascribes possession of contraband inside a vehicle to the occupants of the vehicle. The evidence did not support the allegation that defendant “occupied” the vehicle. He was seen standing outside the vehicle and reaching inside through an open window. In addition the police officers should have been allowed to narrate the video saying the defendant could be seen inside the vehicle and reaching into the back seat:

… [T]he People admitted a surveillance video, which showed that the defendant briefly leaned his upper body through the open rear passenger side door of the Lincoln Navigator while standing on the vehicle’s running board. However, the video reflected that the defendant never lifted his feet from the running board to climb into the Lincoln Navigator or take a seat inside the vehicle … . Under the circumstances presented, the People’s contention that the defendant “occup[ied]” the vehicle within the meaning of Penal Law § 265.15(3) is without merit. … Supreme Court erred in charging the jury with respect to the automobile presumption. People v Lewis, 2024 NY Slip Op 01728, Second Dept 3-27-24

Practice Point: The automobile presumption of possession of the contents of a vehicle by the occupants of the vehicle does not apply to a person standing outside a vehicle and reaching inside through a window.