Murphy, P. J., concurs in the majority memorandum and in the following separate concurring memorandum of Rosenberger, J. I concur in the result reached by the majority but would reverse on the additional ground that the charge on "possession”, while not objected to, deprived defendant of a fair trial.
In charging the jury on the elements of criminal possession of stolen property in the third degree, the court instructed the jury that a person can possess a car "by either being in it or being in a position to exercise dominion or control. Possession could occur even if one were in the passenger seat as opposed to the driver’s seat.” Although defense counsel did not object to this portion of the charge, the trial court’s reduction of the definition of "possession” to mean "presence” in the vehicle obviated the People’s burden of proving defendant’s exercise of "dominion or control” over the automobile (Penal Law § 10.00 [8]; People v Johnson, 71 AD2d 692, 693), warranting the reversal of defendant’s conviction.
To support a conviction of criminal possession of stolen property in the third degree, the People had to prove defendant possessed the property which he knew to be stolen (Penal Law § 165.50; People v Johnson, supra). To " '[pjossess’ means to have physical possession or otherwise to exercise dominion or control over tangible property” (Penal Law § 10.00 [8]). The mere presence of a defendant in an automobile is insufficient to establish his possession of the vehicle (People v Gregory, 147 AD2d 497; People v Brown, 115 AD2d 791, lv denied 67 NY2d 880; People v Palmer, 111 AD2d 473; People v Johnson, supra).
The People’s contention that the charge as a whole conveyed the correct legal principle and dissipated any prejudice caused by the quoted language is without merit. The court never corrected the erroneous instruction which provided the jury with alternative ways to convict defendant, i.e., by finding that he was either in the car or in a position to exercise dominion or control over it (see, People v Lourido, 70 NY2d 428). This instruction could have easily mislead the jury into thinking that defendant’s mere presence in the car was sufficient to establish possession even if there was insufficient evidence to demonstrate that defendant exercised dominion or control over the vehicle. The charge provided, in effect, negated defendant’s defense that he was merely a passenger in the automobile. The error was not harmless, as the charge *177may well have contributed to an erroneous verdict (People v Satisfield, 68 AD2d 817).