Opinion
2014-12-30
The PEOPLE of the State of New York, Respondent, v. Robert JOHNSON, Defendant–Appellant.
Seymour W. James, Jr., Center for Appellate Litigation, New York (Joanne Legano Ross of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Julia L. Chariott of counsel), for respondent.
Seymour W. James, Jr., Center for Appellate Litigation, New York (Joanne Legano Ross of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Julia L. Chariott of counsel), for respondent.
, J.P., ANDRIAS, SAXE, DeGRASSE, GISCHE, JJ.
Judgments, Supreme Court, Bronx County (Steven L. Barrett, J.), rendered July 5, 2011, convicting defendant, upon his pleas of guilty, of petit larceny and unauthorized use of a vehicle in the third degree, and sentencing him to concurrent terms of 1 year and 4 months, respectively, unanimously affirmed.
The misdemeanor information alleging unauthorized use of a vehicle in the third degree was not jurisdictionally defective. Defendant's employer at the time of the incident alleged that he was the lawful owner of the vehicle, that he gave defendant the keys to the vehicle to make deliveries in the morning and early afternoon of the date of the incident, and that he instructed defendant to return the keys by 2:00 p.m. The owner further alleged that he saw defendant in possession of the keys at 9:30 p.m. that day. Defendant's possession of the keys after the time he was supposed to have returned them established that he exercised control over or otherwise used the vehicle ( see People v. McCaleb, 25 N.Y.2d 394, 399, 306 N.Y.S.2d 889, 255 N.E.2d 136 [1969] ). The allegation that defendant exercised control over the van without the owner's consent raised a presumption that he knew that he did not have such consent ( seePenal Law § 165.05[1] ), and such knowledge was also supported by the owner's instruction to defendant.