People v. Hurtado

• Decision Date: 06 December 1982
• Citation: 116 Misc.2d 897,456 N.Y.S.2d 660
• Parties: The PEOPLE of the State of New York v. Jessie HURTADO and Luis Parra, Defendants.
• Court: New York City Court

Page 660

456 N.Y.S.2d 660

116 Misc.2d 897

The PEOPLE of the State of New York v. Jessie HURTADO and Luis Parra, Defendants.

Criminal Court of the City of New York New York County.

Dec. 6, 1982.

Robert M. Morgenthau, Dist. Atty., New York County (Doreen Etingen, New York City, of counsel), for the People.

Caesar Cirigliano, Legal Aid Soc., New York City (Mary H. Sandoval, New York City, of counsel), for defendant Hurtado.

Harry A. Bussel, New York City, for defendant Parra.

ALAN I. FRIESS, Judge:

The issue in this case is one that confronts our courts on a daily basis. Surprisingly, there are no reported cases on point.

In the same accusatory instrument defendants are accused of the class A misdemeanors of attempted grand larceny in the third degree (Penal Law §§ 110.00, 155.30), possession of burglar's tools (Penal Law § 140.35), and criminal mischief in the fourth degree (Penal Law § 145.00).

The accusatory instrument provides as follows:

Deponent states that he observed the defendants, acting in concert, with intent to deprive another of property and to appropriate the same to themselves or to a third person and without the consent of the owner thereof, and with the use of burglar's tools, to wit: slammer, screwdriver and wrench, in possession of a 1974 Chevy, in that the defenda Jessie Hurtado was inside the 1974 Chevy NY License # 3833 ALM and that said burglar's tools were found on the floor underneath the wheel, while the defendants Parra and Morales ¹ were in proximity to said vehicle.

Deponent further states that the defendants, with intent to damage property of another and having no right to do so nor any reasonable ground [to] believe that they had such right damaged the ignition of the aforementioned vehicle in that the ignition was partially broken and did have scratch marks on the surface.

Deponent is informed by Luis Bonet, of an address known to the District Attorney's Office, that he is the owner of said vehicle and that the defendants did not have permission or authority to damage said car, or to take, use or possess said car.

Each defendant made statements.

While the accusatory instrument as it currently exists is sufficient in its form and content (CPL 100.40[4] ) and alleges every element of the charges pending against defendants, the People have conceded they will be unable to obtain the supporting deposition (CPL 100.20) of Luis Bonet. Thus, they are unable to convert fully the misdemeanor complaint to an information as required by CPL 170.65.

Defendants now move to dismiss the accusatory instrument as insufficient on its face. (See CPL 100.40[1][c].) They claim that the failure of the People to supply a supporting deposition from Bonet alleging that the defendants did not have permission or authority to damage or possess the automobile causes the entire instrument to be defective. ²

Relying on People v. Borrero, 26 N.Y.2d 430, 311 N.Y.S.2d 475, 259 N.E.2d 902 (1970), the People contend that the lack of permission of the true owner to damage or possess the automobile can be proved by the circumstantial evidence surrounding the event. In Borrero, the Court of Appeals held that circumstantial evidence of defendant's lack of ownership could be inferred from the defendant's conduct. The court reasoned that common experience would suggest the defendant was breaking into another person's automobile when he was seen prying at the vent window and when approached by another individual put the screwdriver under his coat and walked away. (People v. Borrero, supra, at 436, 311 N.Y.S.2d 475, 259 N.E.2d 902.) The People contend that defendant's similar conduct, which was observed by the deponent police officer is sufficient to show circumstantially their lack of ownership and thus make the information sufficient.

The People's reliance on Borrero is misplaced. Borrero involved the conviction at trial of a defendant for possession of burglar's tools. The court's holding was that circumstantial evidence was sufficient at trial to prove beyond a reasonable doubt that the tools were used under circumstances evincing an intent to commit a crime.

The procedural requirement under CPL 100.40(1)(a) is distinguishable from the evidentiary requirements at a trial. ³ It is a nonwaivable jurisdictional prerequisite that an information contain in its factual portion each and every element of the offense charged. (People v. Hall, 48 N.Y.2d 927, 425 N.Y.S.2d 56, 401 N.E.2d 179 [1979]; People v. Case, 42 N.Y.2d 98, 396 N.Y.S.2d 841, 365 N.E.2d 872 [1977].) For the information to be sufficient each of these elements must be set out in the form of a non-hearsay allegation (100.40[1][a] ). By non-hearsay it is meant that type of evidence which would be admissible at trial. (People v. Conoscenti, 83 Misc.2d 842, 844, 373 N.Y.S.2d 443 [Dist.Ct., Suffolk County, Newmark, J., 1975].)

It is an essential element to the crime of criminal mischief in the fourth degree that the property damaged belong to another person (Penal Law § 145.00). Likewise, it is an element to a larceny crime that the property be taken from its owner (Penal Law § 155.05). The only factual allegations alleged in this accusatory instrument that establish these elements are based upon...