People v. Borrero

• Decision Date: 13 May 1970
• Citation: 26 N.Y.2d 430,311 N.Y.S.2d 475,259 N.E.2d 902
• Parties: , 259 N.E.2d 902 The PEOPLE of the State of New York, Appellant, v. Nelson BORRERO, Respondent. The PEOPLE of the State of New York, Respondent, v. Santos LUGO, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 475

311 N.Y.S.2d 475

26 N.Y.2d 430, 259 N.E.2d 902

The PEOPLE of the State of New York, Appellant, v. Nelson BORRERO, Respondent.

The PEOPLE of the State of New York, Respondent, v. Santos LUGO, Appellant.

Court of Appeals of New York.

May 13, 1970.

Frank S. Hogan, Dist. Atty. (Burton N. Lipshie and Michael R. Juviler, New York City, of counsel), for appellant in first above-entitled case.

Stuart A. Holtsman and Milton Adler, New York City, for respondent in first above-entitled case.

Carol Berkman and Milton Adler, New York City, for appellant in second above-entitled case.

Frank S. Hogan, Dist. Atty. (Burton N. Lipshie and Michael R. Juviler, New York City, of counsel), for respondent in second above-entitled case.

JASEN, Judge.

The question in each of these cases, argued together on appeal, is whether there was sufficient evidence to support the conclusion that the defendants were possessed of 'any tool, instrument or other article adapted, designed or commonly used for committing or facilitating * * * offenses involving larceny by physical taking * * * under circumstances evincing an intent to use * * * the same in the commission of an offense of such character.' (Penal Law, Consol.Laws, c. 40, § 140.35, possession of burglar's tools.)

PEOPLE v. BORRERO

At about 5:55 P.M., on March 18, 1968, Detective John Reilly, a 13-year veteran of the New York City Police Department, noticed defendant Borrero standing in the street alongside a parked automobile, prying on the vent window of the vehicle with a screwdriver. After the officer had observed Borrero continue his labor for about two or three minutes, another man walked over toward Borrero and appeared to say a few words. Following this, Borrero placed the screwdriver beneath his jacket, turned away from the auto and began walking up the street. At this point Detective Reilly stopped him, identified himself as a policeman, and informed Borrero he was under arrest. Thereupon, Borrero removed his right hand from his jacket pocket and threw a glassine envelope in the direction of his mouth. The envelope struck the side of his face, falling to the ground, and Borrero started to run away. The officer apprehended the defendant and retrieved the glassine envelope, which was found to contain heroin. Detective Reilly testified that he had previously made five or six arrests for possession of burglar's tools, a majority of which have led to convictions. He also said that when a screwdriver is used on a vent window, as he said defendant was using it, the effect is to break the vent window or shear off the lock on the vent window, thereby affording entrance into the vehicle. The People offered no other evidence.

Borrero testified at trial and disputed Detective Reilly's testimony. Defendant admitted the screwdriver was his, but claimed that he used it in his work as a carpenter. He further testified that on the afternoon in question, he and one Morales were walking to the store to purchase milk for Morales' child when Detective Reilly approached him and said he was under arrest. When he asked why he was being arrested, Reilly grabbed him and began to shake him. Defendant also stated that after Reilly subdued him, the officer showed him a glassine envelope and said, 'This is yours.' Defendant denied that he had a glassine envelope in his possession, or that he attempted to gain entry to a parked car.

Borrero was convicted of possession of burglar's tools and possession of narcotics, and sentenced to two concurrent six-month terms in prison. The Appellate Term reversed on the law as to the burglar's tools charge, holding that in the absence of any proof of ownership of the car, the requisite showing of intent to use the screwdriver unlawfully was not established. The court was of the opinion that absent such proof, the conduct of the defendant was as consistent with innocence as with guilt.

PEOPLE v. LUGO

On the morning of October 20, 1968, Patrolman William Cocodrilli of the New York City Police Department was assigned to deal with larcenies of automobiles in the 7th Precinct. In the vincinity of Essex and Broome Streets, he noticed a parked automobile in which were several packages, including a box which had the words 'Oneida Silverware' on it. Cocodrilli kept the car under observation for approximately half an hour.

At about 11:30 A.M., the officer observed defendant Lugo and one Rolden walking along Essex Street looking into parked cars. When they came to the car described above, they had a brief discussion and then defendant Lugo inserted a wire into the window of the right front door of the car. Meanwhile, Rolden walked to the front of the car and stood watch, looking up and down the street. They were so occupied for 'a couple of minutes' when a man and a woman, carrying packages, approached the car. At this point the defendant removed the wire from the window, folded it, and put it in his pocket. He and his cohort then walked away. The couple arrived at the car, unlocked it, and entered the vehicle. The officer then followed Lugo and Rolden, arrested them, and recovered a wire coat hanger from Lugo's pocket. He returned the suspects to the car the couple entered and had a conversation with the driver, who gave the officer his name. However, at the trial the People did not offer any direct evidence as to the ownership of the car.

After making the arrest, Patrolman Cocodrilli advised both defendant Lugo and his companion of their constitutional rights. While on the way to arraignment, defendant Lugo said several times, 'I had the tool, let him go', and his colleague added, 'Well, let me go, he (Lugo) had the tool.'

Defendant did not testify at his trial. He was found guilty of possession of burglar's tools and sentenced to nine months' imprisonment. The Appellate Term, First Department, unanimously affirmed, without opinion.

In each of these cases, as noted before, there is involved an interpretation of section 140.35 of the Penal Law, to wit: whether the circumstantial evidence was sufficient to support the conclusion that the defendants beyond a reasonable doubt, possessed burglar's tools 'under circumstances evincing an intent to use * * * the same in the commission of an offense'.

Of course, such things as screwdrivers or lengths of wire are not in and of themselves 'burglar's tools' and no presumption of intent may arise from mere possession of such instruments. (People v. Spillman, 309 N.Y. 295, 130 N.E.2d 625.) However, an intent to possess such instruments for an unlawful purpose may be established by circumstantial evidence. (Cf. People v. Heusner, 26 N.Y.2d 776, 309 N.Y.S.2d 210, 257 N.E.2d 656.)

In testing the sufficiency of circumstantial evidence, this court has often said that (a) the hypothesis of guilt should 'flow naturally from the facts proved, and be consistent with them all'; and (b) the facts proved must all be consistent with guilt and inconsistent with innocence and exclude 'to a moral certainty' every reasonable hypothesis but guilt. (E.g., People v. Bennett, 49 N.Y. 137; 144; People v. Razezicz, 206 N.Y. 249, 272, 99 N.E. 557, 565; People v. Eckert, 2 N.Y.2d 126, 157 N.Y.S. 551, 138 N.E.2d 794; People v. Yazum, 13 N.Y.2d 302, 246...