Opinion
7885/2009.
Decided January 25, 2010.
Defendant stands indicted of unauthorized use of a vehicle in the second degree (Count 1) (PL 165.06), unauthorized use of a vehicle in the third degree (Count 2) (PL 165.05), criminal mischief in the fourth degree (Count 3), and possession of burglar's tools (Count 4). Defendant moves to dismiss Counts 1 and 2 as legally insufficient.
Harvey A. Herbert, Esq., Brooklyn, NY, for defendant.
Charles J. Hynes, Esq., District Attorney, by Danit Almog, Esq., Brooklyn, NY, for the People.
The evidence before the Grand Jury was that the owner of a truck emerged from his home and observed the defendant to be present inside of the owner's truck, which was parked on State Street in Kings County, in the same location where he had parked it several hours earlier. The passenger's side door was open, and defendant was rifling through the car. When confronted by the owner, defendant allegedly stated that he was looking for change, that he had not taken anything, and "leave me alone." The owner of the truck followed defendant, and called 911 on his cell phone. Defendant was soon apprehended by police officers. The owner later discovered that the passenger side door lock was broken.
The issue presented on this motion is whether defendant's alleged conduct is legally sufficient to establish unauthorized use of a vehicle, where the vehicle had not been moved, and no attempt made to operate the vehicle. Under PL § 165.05 (1), a person is guilty of unauthorized use of a vehicle in the third degree when "knowing that he does not have the consent of the owner, he takes, operates, exercises control over, rides in or otherwise uses a vehicle." Under PL § 165.06, a person commits unauthorized use of a vehicle in the second degree when he commits the crime of unauthorized use of a vehicle in the third degree as defined in PL § 165.05 (1) and has been previously convicted of the crime of unauthorized use of a vehicle in the second or third degree within the preceding ten years. At issue here is whether there exists sufficient evidence to establish prima facie that defendant "exercised control over" or "otherwise used" the vehicle in order to sustain a charge of unauthorized use of a vehicle.
The crime of unauthorized use of a vehicle does not require that the vehicle be in motion, although in a number of early cases, the Court of Appeals sustained convictions where presence in stationary vehicles was coupled with other evidence showing ability to operate the vehicle. For example, in People v. McCaleb ( 25 NY2d 394, 255 NE2d 136, 306 NYS2d 889), the Court found sufficient evidence to sustain convictions for unauthorized use of a vehicle in two companion cases where defendants were found in parked cars which had been reported stolen. In one case, the defendant was found seated in the rear of an automobile but with an operable ignition key; in the other, the defendant was found asleep in the front seat of a car with the motor running. In People v. Roby ( 39 NY2d 69, 346 NE2d 540, 382 NYS2d 739), the Court held that there was "no minimum time limit for unauthorized occupation," and that the crime of unauthorized use was committed where defendant occupied the front passenger seat of a stolen vehicle, and the co-defendant and a companion were seated behind the steering wheel of the stolen vehicle and were attempting to insert the key into the ignition when the arresting officer approached and identified himself.
More recent cases have held that mere entry or presence in a parked vehicle, without evidence of operation of the car or ability to do so, even where there is evidence of theft from the vehicle, is insufficient to establish unauthorized use of a vehicle. In Matter of Jose C. ( 52 AD3d 253, 859 NYS2d 179 [1st Dep't 2008]), a juvenile delinquency case, the juvenile and a companion were standing behind a car with an open trunk in the early morning hours, and closed the trunk as a police officer drove up. The car was in the same place where it had been parked by the owner. The officer observed that the door lock and window had been broken, and that an ashtray full of change apparently had been removed from the car and deposited in a different car. The evidence also established that the juvenile and his companion possessed screwdrivers. On this evidence, the First Department held that the evidence was insufficient to establish unauthorized use of a vehicle:
"The evidence also was insufficient to establish unauthorized use of a vehicle in violation of Penal Law § 165.05(1). That crime requires "an exercise of dominion and control over the car, either mechanically or physically, to the exclusion of the owner's proprietary interest, even transitorily" (People v Gray, 154 AD2d 547, 547, 546 NYS2d 387). There was no evidence that appellant or his companion ever attempted to start the car, or had the means to do so. Neither appellant's presence near a vandalized car, nor the inference that he or his companion must have entered the car at some point to steal the ashtray and coins, established the requisite exercise of dominion and control (id.; see also Matter of Javier F., 3 AD3d 493, 769 NYS2d 601; Matter of Archangel O., 157 AD2d 729, 551 NYS2d 785; Matter of Ruben P., 151 AD2d 485, 542 NYS2d 276)." Matter of Jose C., supra at 254.
The Second Department has similarly held that "momentary presence in or about a vandalized automobile cannot, without more, provide the basis for a finding that [defendant] exercised dominion and control over the vehicle. . . ." (Matter of Archangel O., 157 AD2d 729, 551 NYS2d 785 [2d Dept. 1990].) This was made clear in In re Javier F. ( 3 AD3d 493, 769 NYS2d 601 [2d Dep't 2004]), a juvenile delinquency proceeding in which the juvenile was observed "leaning partially inside" a parked vehicle, of which the passenger side window had been broken, and property removed from the vehicle and placed on the sidewalk. The Second Department held that as vehicle remained in the same location where the owner's son had parked it the previous afternoon, and there was no evidence that the juvenile had the means to operate the vehicle, the presentment agency had failed to establish that the juvenile exercised the requisite dominion or control over the vehicle. (See also, People v Gray, 154 AD2d 547, 546 NYS2d 387 [2d Dept. 1989] [evidence of unauthorized use insufficient where defendant exited stolen, parked vehicle, and there was no evidence of tampering with operative system or actual operation]; Matter of Ruben P., 151 AD2d 485, 542 NYS2d 276 [2d Dept. 1989] [momentary presence in stripped, inoperable vehicle to remove spare change was insufficient].)
This court observes that in Matter of Ruben P. (supra), the Second Department cited with approval People v. Butler ( 119 Misc 2d 1071, 465 NYS2d 477 Sup. Ct., NY Co., Rothwax, J., 1983). In Butler, the evidence before the Grand Jury established that the defendant was observed breaking the vent window of a parked automobile on a public street, entering the car, and kneeling on the front passenger's seat facing the dashboard before he fled. The court held that, "Integral to the court's analysis of the other uses prohibited by the statute is the exercise of some degree of control over the confines of the car or the car's mechanism . . . Conversely, conduct in regard to an automobile which does not approach to any degree an exercise of dominion and control over the car, either mechanically or physically, to the exclusion of the owner's proprietary interest, even transitorily, is not a use' of the automobile within the contemplation of the Legislature." (Id at 1073.) The court reasoned that unlawfully entering the automobile and remaining briefly inside without otherwise tampering with the car's operative mechanism did not constitute an unauthorized use of the automobile within the meaning of the statute:
The question remains whether the defendant's entry into another's car and his brief residence therein constitutes a "use" in the sense of an exercise of dominion and control of the car. In the instant case the defendant did not obtain the means to set the car's mechanism in operation, nor is there any evidence, such as possession of a tool designed to bypass the car's ignition system, of an intent to operate the car. The defendant's presence in the car was transitory and did not, beyond the fact of his unauthorized entry, exclude the proprietor from use or occupancy of the car, even temporarily. The damage to the car and the possession of a common tool which may have been used for a variety of purposes, including forcing the glove compartment or removing the radio, are charged as separate offenses. . . ." People v. Butler, 119 Misc 2d 1071, 1074 (NY Sup. Ct. 1983).
In accordance with the foregoing, the motion is granted to the extent of dismissing Counts 1 and 2 with leave to re-present. The court has examined the evidence presented before the Grand Jury, and the presentation of the case to the Grand Jury, and finds no basis for dismissal or reduction of any of the remaining charges.
This is the Order of the Court.