(dissenting). I would reverse, vacate the fact-finding and dispositional orders, and dismiss the delinquency petition.
Family Court erroneously applied the permissive presumption in Penal Law § 165.05 (1) (a person who rides in a vehicle without the consent of the owner is presumed to know that he or she does not have such consent) and, absent any direct or circumstantial evidence that appellant, a rear seat passenger, knew she was riding in a stolen vehicle, its finding that appellant was guilty of unauthorized use of a vehicle in the third degree is against the weight of the evidence.
As this Court held in Matter of Stephen R. (182 AD2d 92, 95), “That the driver’s use of the car was, by all appearances, lawful is sufficient to rebut any presumption that appellant [who was sitting next to the driver in the front passenger seat of a parked car] knew it was being used without authority and casts upon the presentment agency ‘a heavy burden * * * to negative this rebuttal of the presumption, in order to sustain conviction based on proof beyond a reasonable doubt’ (People v McCaleb, [25 NY2d 394] at 401).”
It is well settled that “[e]vidence of an arresting officer’s direct observations and investigation, combined with reasonable inferences to be drawn therefrom, suffice to prove guilt of unauthorized use of a vehicle in the third degree beyond a reasonable doubt (Matter of Jose M., 177 AD2d 399, lv denied 79 NY2d 756)” (Matter of Brenda D., 186 AD2d 65, 65; see also, Matter of Curtis H., 216 AD2d 173, 174). In Brenda D., this Court held that the direct evidence offered by the presentment agency was “sufficient to give rise to a presumption that appellant did not have the owner’s consent to use the vehicle (Penal Law § 165.05 [1])” (at 65 [emphasis added]). There, however, the direct evidence was that the arresting officer, after confirming that if was stolen, stopped the car in which appellant was a passenger. He and other officers surrounded the car, ordered the four occupants out, and placed them under arrest. “The steering column was ripped apart in an effort to gain access to the wire that started the car, and there was a hole where the right passenger-door lock should have been. The lock was found on the floor near the front passenger seat, and a screwdriver was recovered from the driver’s pocket.” (Id.) Here, to the contrary, the direct evidence offered by the presentment agency was insufficient to give rise to such a presumption.
Here, the arresting officer, who aside from the vehicle’s owner was the only witness called by the presentment agency at the fact-finding hearing, testified that, at approximately 12:30 a.m. *162on July 31, 1999, the then 14-year-old appellant was a passenger in the middle rear seat of a van traveling in Manhattan, which the officer stopped after a computer check revealed that it bore suspended license plates. The petition names, and there was reference to, the presence of two other adult passengers, but there was no testimony at the hearing to that effect. After the van was stopped, the driver of the van told the officer that it belonged to a friend, but was unable to produce a valid registration for the vehicle or explain why the plates on the van were not the ones registered to the vehicle. It was subsequently determined that the van had been stolen several days earlier.
Significantly, on cross-examination, the officer further testified that the vehicle was being driven by an adult who had the keys; that the steering column was not broken; that there was no way to tell the van was stolen until he ran the license plate check; and that, looking at the inside of the vehicle, there was no way to tell that anything had been tampered with or that the van was stolen.
Although appellant did not present any witnesses and did not testify on her own behalf, the officer’s testimony, by itself, is sufficient to rebut the statutory presumption. Once evidence is before the court, whether introduced by the presentment agency or developed by the defense on cross-examination, the defense is free to refer to it or rely upon it to develop its theory of the case. Thus, the majority’s observation that “appellant offered no evidence from any source to explain her presence in the van” is both an inaccurate explanation of her obligation in a quasi-criminal case and a misreading of what transpired at the hearing.
Moreover, as noted in Stephen R. (supra at 96), requiring appellant to testify in order to meet her “light burden of going forward” to explain her presence in the vehicle and thus rebut an unwarranted presumption would infringe upon her right to remain silent by drawing an adverse inference from such failure and would shift the burden to appellant to demonstrate her innocence rather than place the burden on the presentment agency to establish each element of the offense, including knowledge that the vehicle was stolen, beyond a reasonable doubt. The presumption may certainly be overcome without the appellant’s testimony and is not sustainable merely because the appellant has elected not to take the stand (see, People v Moro, 23 NY2d 496, 501).
The lack of any indicia that the vehicle was stolen is significant in that the same indicia are equally relevant to the ques*163tion of whether the vehicle was being operated without the owner’s permission. Without the permissive presumption, there is nothing in the record to support a finding that the 14-year-old appellant or a reasonable person in her circumstances was aware or should have been aware that she was riding in a stolen vehicle or that the driver did not have the owner’s authorization to use it.
In People v Roby (39 NY2d 69), the defendant was sitting in the front seat of the car while his companions were trying to insert a key into the ignition. The Court of Appeals found that under those circumstances the jury was warranted in concluding that defendant’s occupation of the front seat of an “unquestionably stolen” vehicle constituted the unauthorized use of the vehicle under the statute (39 NY2d at 71). Here, on the other hand, it was not self-evident that the van in which appellant was riding was stolen. Only after it was stopped and further investigation conducted, presumably of police or motor vehicle records, was it determined that the van had been stolen three days earlier.
Likewise, in McCaleb (supra), the Court found that there was “a rational connection between the presumed fact and the given evidence, and a reasonably high degree of probability [was] present sufficient to justify placing the relatively light burden of going forward on the defense”. (Id. at 404). The evidence here is insufficient to warrant the fact-finding court’s sole reliance upon the statutory presumption.
There is also nothing in the record to indicate that the fact-finding court relied on anything other than the permissive presumption. Nor is there any indication that the placard on the dashboard of the van entered into the court’s thinking in any way. Moreover, the majority’s reliance upon the coincidence that appellant lived near the owner of the van for its conclusion that appellant clearly knew that the van she was riding in had been stolen three days earlier amounts to nothing but impermissible and illogical speculation. It could just as easily be speculated that, since the driver and other passengers were known to appellant from her neighborhood, she trusted them not to be driving in a stolen van.
Finally, it appears from the hearing transcript that the court did not accept the proffer by appellant’s counsel of our decision in Matter of Stephen R. (supra), but relied upon the decision in Matter of Antonio R. (186 AD2d 200), which is distinguishable on its facts (as the result of a police bulletin, the juvenile there was found sitting in the front passenger seat of a car that had *164been stolen 40 minutes earlier). Here, the significance of the 14-year-old appellant’s riding with three adults in the rear passenger seat of a van reported stolen three days earlier is a far cry from the “sinister significance” of the adult defendants’ unexplained presence in two parked cars that had been reported stolen within nine hours of the arrests in People v McCaleb (supra at 400).
If the majority’s reasoning were followed to its logical conclusion, everyone — man, woman or child — would risk conviction for the unauthorized use of a motor vehicle every time he or she accepted a ride with a friend or stranger in an unfamiliar vehicle, unless he or she first demanded and obtained proof that the driver had the owner’s permission to use it. There is no reason to believe that, if appellant had asked the driver where he had gotten the van, his answer would have been any different than his answer when that question was asked by the arresting officer: viz., that it belonged to a friend.
Saxe and Wallach, JJ., concur with Friedman, J.; Andelas, J.P., and Lerner, J., dissent in a separate opinion by Andelas, J.P.
Order, Family Court, New York County, entered on or about May 3, 2000, affirmed, without costs.