People v. Hightower

• Decision Date: 13 December 2011
• Parties: The PEOPLE of the State of New York, Respondent, v. Joseph HIGHTOWER, Appellant.
• Court: New York Court of Appeals Court of Appeals

18 N.Y.3d 249
2011 N.Y. Slip Op. 08960
938 N.Y.S.2d 500
961 N.E.2d 1111

The PEOPLE of the State of New York, Respondent,
v.
Joseph HIGHTOWER, Appellant.

Court of Appeals of New York.

Dec. 13, 2011.

[938 N.Y.S.2d 500]

Legal Aid Society, New York City (Adrienne Hale and Steven Banks of counsel), for appellant.

Cyrus R. Vance, Jr., District Attorney, New York City (John B.F. Martin and Patricia Curran of counsel), for respondent.

[18 N.Y.3d 251] OPINION OF THE COURT Chief Judge LIPPMAN.

[961 N.E.2d 1111] This appeal presents the interesting issue of whether defendant's swipe of an unlimited MetroCard in return for a fee, although decidedly criminal in nature, constituted larceny. We hold that it did not.

The question before the Court, as to the consequences of unauthorized uses of an otherwise valid MetroCard, is not academic. Last year, subway ridership in New York City topped 1.6 billion, making the City's system, consisting of 468 stations, the fourth busiest in the world. Since its introduction in 1998, the unlimited MetroCard has become a popular option among riders, with the 30–day unlimited card alone accounting for nearly one third of the 29 million weekly swipes ( see Albert Sun, How MetroCard Swipes Reveal a Changing City, Wall St. J., http:// blogs. wsj. com/ metropolis/ 2011/ 10/ 20/ how- metrocard- swipes- reveal- a- changing- city [Oct. 20, 2011] ).

On February 15, 2009, a police officer observed defendant swiping an unlimited MetroCard through a turnstile in a Midtown[961 N.E.2d 1112]

[938 N.Y.S.2d 501]

Manhattan New York City Transit Authority (NYCTA or the Authority) ¹ subway station, but instead of proceeding to the platform himself, allowing another person to gain access to the subway platform, and accepting an unknown amount of money in exchange. As a result of this transaction, defendant was convicted of petit larceny.

There are several types of MetroCards, including pay-per-ride cards and unlimited cards. An unlimited MetroCard is a fare card that grants unlimited access to subways and buses within the NYCTA system for a set price and it remains valid for a specified period of time (e.g., 30 days or seven days), with the restriction that a user must wait 18 minutes between swipes at the same station or on the same bus route. [18 N.Y.3d 252] Unlimited MetroCards are transferable, but the person lending or giving the card away is not permitted to accept money in exchange.² A MetroCard can be swiped through an electronic reader in a subway station in order to determine the amount of money left on the card (in the case of a pay-per-ride card) or the expiration date (in the case of an unlimited card).

A misdemeanor information was issued and it described the events giving rise to the charges, including the officer deponent's observations at the time of the incident:

“[D]eponent observed the defendant receive money from one individual in exchange for which deponent observed the defendant immediately thereafter swipe an unlimited ride MetroCard through the turnstile in order to allow said individual to enter the subway station beyond the turnstiles without permission or authority to do so ...

“[D]efendant did not enter the subway station beyond the turnstiles ... [D]eponent recovered said unlimited ride MetroCard from defendant ... [and] determined this card was an unlimited ride Metro–Card by swiping it through a [n] [NYCTA] Metro–Card reader.”

Defendant was charged with one count of petit larceny (pursuant to Penal Law § 155.25), one count of unauthorized sale of certain transportation services (pursuant to Penal Law § 165.16[1] ),³ and one count of illegal access to Transit [18 N.Y.3d 253] Authority services (pursuant to 21 NYCRR 1050.4).⁴ Defendant entered a plea of guilty to petit larceny in satisfaction[961 N.E.2d 1113]

[938 N.Y.S.2d 502]

of all of the charges and was convicted of that crime.⁵ The Appellate Term affirmed the judgment of conviction (28 Misc.3d 131[A], 2010 N.Y. Slip Op. 51269[U], 2010 WL 2834943 [App. Term, 1st Dept.2010] ). A Judge of this Court granted defendant leave to appeal (15 N.Y.3d 953, 917 N.Y.S.2d 113, 942 N.E.2d 324 [2010] ). We now reverse and, since defendant has already served his sentence, dismiss the accusatory instrument.

The factual portion of a misdemeanor information charging multiple counts shall “consist of a single factual account applicable to all the counts of the accusatory part” and

“[t]he factual allegations may be based either upon personal knowledge of the complainant or upon information and belief ... [and] in order for an information or a count thereof to be sufficient on its face, every element of the offense charged and the defendant's commission thereof must be supported by non-hearsay allegations of such information and/or any supporting depositions” (CPL 100.15[3] ).

“A misdemeanor complaint...