(dissenting). I dissent and would affirm the judgment of conviction appealed from. Subdivision 1 of section 165.05 of the Penal Law applies to “the situation where two or more persons who may or may not have originally taken *.** [the vehicle] are found riding in it *419*** [T]he occupants sometimes express innocent ignorance of any illegal taking or lack of authorization, and the * * * presumption [of subdivision 1 of section 165.05 of the Penal Law] is inserted in order to minimize the effectiveness of such convenient defenses.” (Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 165.05, p 219.)
The court below, in finding the defendant guilty as charged, manifestly found that testimony of the defendant and her compatriot lacked sufficient credibility to rebut the presumption raised by section 165.05 of the Penal Law. In the context of the testimony adduced by the People from the arresting officer and from the executive of the dealership from which the vehicle had been stolen, I perceive no reason to reject the finding of guilt made by the trial court.
Concur: Tierney, J. P., and Asch, J.; Riccobono, J., dissents in a memorandum opinion.