People v. Choo

• Decision Date: 17 October 1991
• Citation: 576 N.Y.S.2d 486,152 Misc.2d 324
• Parties: The PEOPLE of the State of New York v. Stewart CHOO, Defendant.
• Court: New York City Court

Page 486

576 N.Y.S.2d 486

152 Misc.2d 324

The PEOPLE of the State of New York v. Stewart CHOO, Defendant.

Criminal Court of the City of New York New York County, Part AP 9.

Oct. 17, 1991.

Robert M. Morgenthau, Dist. Atty., New York County by Marc Agnifilo, of counsel, New York City, for People.

Robert M. Baum, The Legal Aid Soc. by Jonathan Heller, of counsel, New York City, for defendant.

PETER J. BENITEZ, Judge.

Defendant is charged with Criminal Mischief in the Fourth Degree, PL 145.00, and Criminal Tampering in the Third Degree, PL 145.14. Defendant moves to dismiss the accusatory instrument pursuant to CPL 170.30 and 170.35, alleging that the factual allegations do not establish the offenses charged.

The accusatory instrument alleges, in substance, that defendant, a former driver with Escort Corporation, a car service owned by the complainant, possessed a two-way radio tuned to the radio frequency owned by the car service and that, during the period April 10, 1991 to April 19, 1991, for about thirteen hours each day, defendant played heavy metal music over this radio frequency. The information further alleges that defendant's conduct made it impossible for the car service to receive transmissions from its drivers in the field and rendered the radio communications of the car service inoperable during the nine-day period.

The People's theory of criminal liability, as set forth in the information, is that defendant's conduct "damaged and interfered with the radio frequency owned by Escort Corporation." In their responsive papers, the People have restated their theory of criminal liability and alleged that defendant's conduct damaged and interfered with the complainant's "radio frequency," rendered the transmitting hardware used to transmit and receive communications over this frequency inoperable, and blocked the "radio waves" transmitted over complainant's frequency. See, People's affirmation in response to defendant's motion to dismiss.

Defendant argues that a radio frequency is not "property" under the statutory sections charged and, even if it is property, is not property of the complainant.

Criminal Mischief and Criminal Tampering are defined, respectively, as damaging and tampering with the "property" of another. While the Penal Law uses the term "property" in many different sections defining conduct constituting criminal conduct, it does not define "property" for each such use. Rather, PL 155.00(1) specifically defines "property" as that term is used in Title J of the Penal Law (Articles 155, 156, 160, and 165), which Title includes larceny, robbery, possession of stolen property, computer crimes, misapplication of property, unauthorized use of a vehicle and certain other offenses. That definition of property includes both tangible and intangible property. See, Donnino, Practice Commentary to Penal Law Article 155, McKinney's Cons.Laws of N.Y., Book 39, at p. 98-99 (1988) and the cases cited therein.

On the other hand, Article 145 of the Penal Law defining the offenses of Criminal Mischief and Criminal Tampering does not specifically define the term "property" as used in that Article. Nevertheless, it appears that the drafters of the Penal Law intended that the term property, as used in Article 145, be more restrictive than the same term as used and defined in theft offenses, Article 155. See, Donnino, Practice Commentary to Penal Law Sections 145.00 and 145.14, McKinney's Cons.Laws of N.Y., Book 39, at pp. 59-60 and 69-70 (1988). In that Commentary, Judge Donnino sets forth the position of the Executive Director and the Counsel to the Commission on Revision of the Penal Law that the term "property" as used in the sections defining Criminal Mischief and Criminal Tampering means only tangible property. Additionally, without citing specific authority, at least two appellate courts have stated that "property" subject to the Criminal Mischief statute must be tangible property. See, Matter of Kevin B. and Timothy L., 128 A.D.2d 63, 69, 514 N.Y.S.2d 971 (1st Dept.1987), aff'd sub nom. Matter of Timothy L., 71 N.Y.2d 835, 527 N.Y.S.2d 734, 522 N.E.2d 1032 (1988) and People v. Simpson, 132 A.D.2d 894, 895, 518 N.Y.S.2d 453 (3rd Dept.1987).

As stated above, the People argue, collectively and in the alternative, that defendant caused damage to and tampered with complainant's "radio frequency," complainant's communication equipment, and complainant's "radio waves." It is commonly understood that the broadcasting of radio signals or waves is the transmission of...