Opinion
January 28, 1976
Appeal from the Criminal Court of the City of New York, New York County, JULIAN A. HERTZ, J.
William E. Hellerstein, William J. Gallagher and Christopher B. Kende for appellant.
Robert M. Morgenthau, District Attorney, (Peter L. Zimroth and Ronni L. Mann of counsel), for respondent.
Indisputably defendant possessed bolt cutters and he and a coconspirator were observed in the process of cutting a bicycle chain with the bolt cutters, without permission of the owner of the bicycle, when dissuaded from completing the act. In this frame of reference, the bolt cutters clearly constituted burglar's tools and we agree with the well-reasoned opinion of the Trial Judge (JULIAN A. HERTZ, J.; 80 Misc.2d 21) that renunciation (Penal Law, § 40.10) was not a defense to the charge of possession of burglar's tools (Penal Law, § 140.35) of which defendant was convicted (People v Lieberman, 3 N.Y.2d 649; People v Nichols, 230 N.Y. 221). [DISOP]
In the ordinary course of events, the possession of bolt cutters is not a crime because the tool is not contraband. It is the criminal intent with which the tool is employed that constitutes the crime of possession of burglar's tools. Once the jury found, as it did, a renunciation of the larcenous plan before completion, the defendants, it would appear to me, were restored to their former status, viz., persons in possession of a tool, which, since it is not contraband, is not a crime.
The court having charged "renunciation" in my view should also have charged that if the jury found the defendants not guilty, by reason of renunciation, the jury need not consider the crime of "possession of burglars tools".
I would vote to reverse and would dismiss the information.
MARKOWITZ, P.J., and TIERNEY, J. concur in a memorandum; RICCOBONO, J., dissents in a separate memorandum.
Judgment of conviction, rendered April 9, 1975 affirmed.