Opinion
94K043854.
Decided April 24, 2006.
Defendant has challenged the sufficiency of the grand jury minutes to sustain the prosecutor's information forming the accusatory basis for the charges against him. Defendant has been accused of the crime of criminal trespass in the third degree under Penal Law section 140.10, the crime of petit larceny under Penal Law section 155.25, and the crime of criminal possession of stolen property under Penal Law section 165.40.
The date of the occurrence of these alleged offenses was July 11, 1994. According to the grand jury testimony of the alleged victim, at about 10:15 PM on the night in question he heard footsteps on his roof. When the alleged victim looked out of his window, he saw Defendant attempting to open the door of the alleged victim's garden shop which is located in a locked, fenced-in area. The alleged victim approached Defendant, an altercation took place, and Defendant took the alleged victim's bicycle that was laying in the yard and rode off with it. The police were called, and the alleged victim accompanied the police officer on a search of the neighborhood, where they found Defendant and the bicycle. The police officer arrested Defendant on the spot.
The police officer also testified at the grand jury proceedings, and stated that he responded to a 911 call, was told by the alleged victim that he had caught Defendant attempting to enter the store located in the fenced-in area, that a fight took place, and that Defendant ran off with the alleged victim's bicycle. The police officer confirmed that he and the alleged victim found Defendant and the bicycle near the place of the occurrence, that the alleged victim identified the bicycle as belonging to him and Defendant as the one who took the bike.
Defendant, represented by counsel, also testified before the grand jury after waiving immunity. Defendant admitted that he entered the fenced-in area, but said that he only entered the area to recover some cans belonging to him that he had previously put in the yard outside the store. Defendant also stated that he was attacked by the alleged victim, sustaining lacerations and punctures, and that he only took the bicycle to escape further injury. Defendant maintained that he committed no crime but was only retrieving his own property and defending himself from physical injury at the hands of the alleged victim.
The grand jury heard the above testimony on August 9 and 10, 1994, and formally accused Defendant of the previously referenced crimes on August 11, 1994. The prosecutor's information specified the crimes with which Defendant was charged, indicated the factual findings supporting those charges, and was subscribed by the District Attorney for Kings County.
In determining the sufficiency of the grand jury minutes to sustain the charges, the court may only look at the statutes and cases in force and effect at the time in question, namely 1994. The court does note that the language of the statutes as they appear in 1994 are identical to the current versions.
Section 100.40 of the Criminal Procedure Law (CPL) states that:
. . .
(3) A prosecutor's information, or a count thereof, is sufficient on its face when it substantially conforms to the requirements prescribed in section 100.35.
. . .
Section 100.35 of the CPL states:
A prosecutor's information must contain the name of the local criminal court with which it is filed and the title of the action, and must be subscribed by the district attorney by whom it is filed. Otherwise it should be in the form prescribed for an indictment . . ., and must, in one or more counts, allege the offense or offenses charged and a plain and concise statement of the conduct constituting each offense. . . .
An information, unlike a felony complaint, must demonstrate both reasonable cause to believe that the defendant committed the offenses charged and a legally sufficient case against the defendant. People v. Crisofulli, 91 Misc 2d 424, 398 N.Y.S. 2d 120 (New York County 1977). An information would be jurisdictionally defective unless it states every element of the crimes with which a defendant is being charged and the particular facts establishing that the defendant committed the crime. People v. McDermott, 69 NY2d 889, 515 N.Y.S. 2d 225 (1987). Therefore, in order to ascertain the sufficiency of the grand jury minutes to sustain the prosecutor's information, the court must look at the elements of each of the offenses with which Defendant was charged and the statements elicited at the grand jury used to support the conclusion that reasonable cause existed to believe Defendant committed those crimes. It is important to bear in mind that, at this stage in the proceedings, the court is not concerned with proving ultimate guilt or innocence, merely whether reasonable cause exists to try the case.
Section 140.10 of the Penal Law, Criminal Trespass in the Third Degree, states:
A person is guilty of criminal trespass in the third degree when he knowingly enters or remains in a building or open real property (a) which is fenced or otherwise enclosed in a manner designed to exclude intruders. . . .
Under this section of the Penal Law, the actor's actual knowledge of the illegality of his presence is an element of the offense; this requirement of actual knowledge does not mean that the individual must admit knowledge, but only that facts must be proved by which such knowledge can be inferred. In re C., 66 Misc 2d 907, 323 N.Y.S. 2d 267 (New York County 1971).
In the instant case, both the alleged victim and Defendant agree that the area in question was fenced in and locked and that Defendant entered the fenced in area without the owner's consent. This is sufficient to sustain a charge of criminal trespass in the third degree. The reasons for being on the premises proffered by Defendant is only a possible defense to the crime; it does not vitiate the grand jury's determination that a reasonable basis exists for believing that the crime was committed.
Section 155.25 of the Penal Law, Petit Larceny, states:
A person is guilty of petit larceny when he steals property.
An individual commits a larceny when he or she wrongfully takes property from an owner thereof. People v. O'Brien, 102 Misc 2d 246, 423 N.Y.S. 2d 135 (Nassau County 1979). A person may be convicted of a larceny even if evidence does not establish an intent to steal as long as he or she takes property belonging to another without the owner's consent. People v. Lopez, 58 AD2d 516, 395 N.Y.S. 2d 455 (1st Dept. 1977). Once the actor leaves with the stolen property (asportation), the crime has been committed. People v. Parrett, 90 Misc 2d 541, 394 N.Y.S. 2d 809 (Nassau County 1977).
In the instant case, Defendant admits that he took the bicycle belonging to the complaining witness and carried it away. The grand jury heard and observed both the complaining witness and Defendant, and determined that a petit larceny was committed. Whether Defendant's rationale for the taking would constitute a valid defense is a question for the jury at trial; it does not obviate the fact that enough evidence existed for the grand jury reasonably to believe that Defendant may have committed the crime.
Lastly, section 165.40 of the Penal Law, Criminal Possession of Stolen Property in the Fifth Degree, states:
A person is guilty of criminal possession of stolen property in the fifth degree when he knowingly possesses property, with intent to benefit himself or a person other than an owner thereof or to impede recovery by an owner thereof.
According to the Practice Comments following this section of the Penal Law, a person who knowingly possesses stolen property is presumed to possess the intent to benefit either himself or someone other than the owner. Defendant admitted in his grand jury testimony that he took the bicycle that he knew was not his, and therefor the basic elements of this offense were present for the grand jury's consideration. Once again, whether Defendant had a reasonable or justifiable excuse for taking the property is a question for the ultimate trier of fact. The accusatory instrument must only indicate a reasonable basis to believe that a crime has been committed; it is not necessary at this stage to substantiate guilt beyond a reasonable doubt.
Based on the foregoing, the court concludes that the grand jury minutes are sufficient to sustain the prosecutor's information in this case.