People v. Cullen

• Decision Date: 14 March 1988
• Citation: 138 A.D.2d 501,525 N.Y.S.2d 895
• Parties: The PEOPLE, etc., Respondent, v. Tommy CULLEN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 895

525 N.Y.S.2d 895

138 A.D.2d 501

The PEOPLE, etc., Respondent, v. Tommy CULLEN, Appellant.

Supreme Court, Appellate Division Second Department.

March 14, 1988.

Gary C. DiLeonardo, Kew Gardens, for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Jean Perrin, of counsel), for respondent.

Before MANGANO, J.P., and LAWRENCE, SPATT and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Cohen, J.), rendered February 22, 1984, convicting him of criminal possession of a weapon in the third degree, criminal possession of stolen property in the third degree and unauthorized use of a vehicle, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is modified, on the law and the facts, by reversing the convictions of criminal possession of a weapon in the third degree and criminal possession of stolen property in the third degree, vacating the sentences imposed thereon, and dismissing those counts of the indictment; as so modified, the judgment is affirmed.

The defendant was arrested on June 11, 1981, while driving a vehicle which had been reported stolen by its owner, the defendant's employer. It was uncontested at trial that the defendant had, on numerous occasions, been given permission to use the car overnight, and, on at least one occasion, the defendant had kept the car for five days. The defendant's employer testified that on June 5, 1981, she had given permission to the defendant to use the car for the evening. The car was to be returned by the following morning. When the car had not been returned by June 9, 1981, and after attempts to contact the defendant had failed, she reported her car stolen. The defendant testified that on June 5, 1981, he had not been told when to return the car, and since no one had contacted him to return it, he thought he had the authority to use it.

We find that viewing the evidence in a light most favorable to the People, the evidence was legally sufficient to establish beyond a reasonable doubt that the defendant was guilty of unauthorized use of a vehicle ( see, People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932). Moreover, upon our factual review power, we are satisfied that the verdict of guilty of that crime was not against the weight of the evidence (CPL 470.15[5] ).

However, we find that the People did not meet their burden of proving the requisite element of the defendant's knowledge that the vehicle was stolen. As such, his conviction of criminal possession of stolen property in the third degree cannot stand.

The crime of criminal possession of stolen property in the third degree requires proof that a larceny was committed ( People v. Colon, 28 N.Y.2d 1, 8-9, 318 N.Y.S.2d 929, 267 N.E.2d 577, cert. denied 402 U.S. 905, 91 S.Ct. 1379, 28 L.Ed.2d 646). Larceny requires the intent to permanently deprive an owner of his or her property or to deprive the owner of it for so extended a period of time that a major portion of its economic value is lost (Penal Law § 155.05[1]; People v. Blacknall, 63 N.Y.2d 912, 913-914, 483 N.Y.S.2d 206, 472 N.E.2d 1034; People v. Ward, 120 A.D.2d 758, 759, 503 N.Y.S.2d 74).

The record reveals a reasonable doubt regarding the defendant's intent to permanently deprive his employer of the vehicle. To the contrary, the record discloses that the defendant had used the car on one occasion for five days and on numerous occasions for more than one consecutive night. Each time, he had returned the car. No reasonable inference can be drawn which establishes an intent to deprive the owner of the car or its substantial value ( see, People v. Palmer, 111 A.D.2d 473, 474, 488 N.Y.S.2d 861; People v. Hunter, 82 A.D.2d 893, 894, 440 N.Y.S.2d 287, affd. 55 N.Y.2d 930, 449 N.Y.S.2d 191, 434 N.E.2d 260).

Furthermore, the legislative intent of the unauthorized use of a vehicle statute was to codify the crime of so-called "joy riding" which did not legally amount to larceny because the intent was of a "borrowing" rather than of a "depriving" or "appropriating" nature ( Van Vechten v. American Eagle Fire Ins. Co., 239 N.Y....