People v. Lawson

• Citation: 99 N.Y.S.3d 602,64 Misc.3d 200
• Decision Date: 30 April 2019
• Docket Number: CR-007220-18RI
• Parties: The PEOPLE of the State of New York, v. Alan LAWSON, Defendant.
• Court: New York Criminal Court

64 Misc.3d 200

99 N.Y.S.3d 602

The PEOPLE of the State of New York,

v.Alan LAWSON, Defendant.

CR-007220-18RI

Criminal Court, City of New York, Richmond County.

Decided on April 30, 2019

For the Defense: John Poppe, Esq., The Legal Aid Society, 60 Bay Street, Staten Island, NY 10301

For the People: Michael E. McMahon, Richmond County District Attorney, 130 Stuyvesant Place, 7th Floor, Staten Island, NY 10301, By: A.D.A. Jeanine Ruggiero

David Frey, J.

The defendant was charged in a misdemeanor information with eight counts each of Petit Larceny ( Penal Law § 155.25 ) and Criminal Possession of Stolen Property in the Fifth Degree (CPSP) ( Penal Law § 165.40 ). The defendant moved to dismiss the charges on the following grounds: (1) the Petit Larceny counts were facially insufficient and beyond the statute of limitations, and (2) the CPSP counts were beyond the statute of limitations and barred by double jeopardy. In response, the People conceded the eight Petit Larceny counts were facially insufficient. The People opposed the defendant's remaining arguments that the Court should dismiss the CPSP counts.

For the reasons set forth below, the defendant's motions to dismiss the CPSP counts are denied.

BACKGOUND

On October 13, 2016, the defendant was arraigned on a felony complaint (Docket No. 2016RI008475) for one count of Criminal Possession of Stolen Property in the Third Degree ( Penal Law § 165.50 ). The People alleged that the defendant possessed 60 stolen jewelry pieces, which he tried to sell, or sold, in Richmond County at three pawn shops (Top Dollar located at 1730 Richmond Avenue, S & L Pawn Shop at 768 Port Richmond Avenue, and Samantha's Jewelry at 290 Port Richmond Avenue) between January 19, 2016, and September 22, 2016. On February 1, 2017, the People reduced that charge to Criminal Possession of Stolen Property in the Fifth Degree ( Penal Law § 165.40 ), to which the defendant pled guilty. The jewelry in question was stolen from Diane Diaz.

On October 1, 2018, the defendant was arrested for eight counts each of Petit Larceny ( Penal Law § 155.25 ) and Criminal Possession of Stolen Property in the Fifth Degree ( Penal Law § 165.40 ). It was alleged that eight pieces of jewelry, which were owned by Diane Bender (who the defendant claims is Diane Diaz), were sold by the defendant to four different pawn shops (C & C Communications located at 76 Victory Boulevard, Loan Island at 152 New Dorp Lane, Jimmy's Fine Jewelry at 1909 Victory Boulevard, and Richmond County Rare Coins at 1570 Richmond Road) between March 19, 2018, and August 15, 2018, in Richmond County. It is undisputed that the jewelry sold to the pawnshops in 2016 was different from the jewelry sold in 2018.

STATUTE OF LIMITATIONS

Criminal Possession of Stolen Property in the Fifth Degree is defined in Penal Law § 165.40 :

"A person is guilty of criminal possession of stolen property in the fifth degree when he knowingly possesses stolen property, with intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner thereof. Criminal possession of stolen property in the fifth degree is a class A misdemeanor."

The People must commence a criminal action for a class A misdemeanor "within two years after the commission thereof" ( CPL 30.10 [1 ] & [2] [c] ).

The defense claims that he committed CPSP when he stole the jewelry more than two years before the criminal court complaint was filed, and the two-year statute of limitations to prosecute him has expired and the charges must be dismissed. The People claim that it was a continuing crime and at trial they will prove he committed his last possessory acts between March 19, 2018, and August 15, 2018. As discussed below, criminal possession of stolen property is a continuing crime and the statute of limitations does not begin to run until the defendant's last possessory act.

1. Statutory Interpretation of Criminal Possession of Stolen Property and the Statute of Limitations.

Prior to 1965, a penal statute was strictly construed against the State and in favor of the accused ( People v. Farone, 308 N.Y. 305, 125 N.E.2d 582 [1955]cert denied 350 U.S. 828, 76 S.Ct. 57, 100 L.Ed. 739 [1955] ), if the statute's provisions were plain and obvious ( People v. Lang, 164 N.Y.S. 5 [App. Term, 2d Dept. 1917] ; People v. Cumbee, 204 N.Y.S.2d 408 [Rochester City Ct. 1960] ) and if the crime charged was malum prohibitum (immoral because it is prohibited, for example, driving without a license or selling fireworks) (see People v. Mobil Oil Corp., 48 N.Y.2d 192, 422 N.Y.S.2d 33, 397 N.E.2d 724 [1979] ) rather than malum in se (prohibited because it is immoral, for example, theft, rape, and murder) (McKinney's Cons Laws of NY, Book 1, Statutes § 271). In 1965, however, the Legislature overruled the common law interpretation method when it enacted Penal Law § 5.00 (L1965, ch 1030), which directs the courts that,

"The general rule that a penal statute is to be strictly construed does not apply to this chapter, but the provisions herein must be construed according to the fair import of their terms to promote justice and effect the objects of the law."

The Criminal Procedure Law, which is not a penal statute but instead is procedural law, has no equivalent interpretation instructions, and thus the court must interpret the statute of limitations ( CPL 30.10 ) utilizing common law principles (see Statutes § 315). When the Legislature amends a statute, it is deemed to have intended a material change in the law (Statutes § 193; e.g. Matter of Stein, 131 A.D.2d 68, 72, 520 N.Y.S.2d 157 [2d Dept. 1987]app dismissed 72 N.Y.2d 840, 530 N.Y.S.2d 555, 526 N.E.2d 46 [1988] ; Lichtenstein v. Grossman Constr. Corp., 221 A.D. 527, 225 N.Y.S. 118 [2d Dept. 1927]affd as modified 248 N.Y. 390, 162 N.E. 292 [1928] ). The courts must seek the new legislative purpose and construe the law to effectuate its purpose (Statutes § 193; see People v. Busccolieri , 91 Misc. 156, 152 N.Y.S. 707 [Ct. Gen. Sessions, N.Y. County, 1914] [when the Legislature amended the crime of seduction, it served to change the relevant statute of limitations from one year to two years] ).

Prior to the Legislature enacting Penal Law § 165.40, the predecessor crime was contained in Penal Law § 1308, "Buying or receiving stolen or wrongfully acquired property." With that crime, it was the act of buying or receiving stolen property that triggered the statute of limitations. When the Legislature enacted the new Penal Law in 1965 (L.1969, ch. 1030, § 165.40) it specifically struck the "buying" or "receiving" elements and replaced them with "possessing" stolen property. It is this important change to the statute that now finds itself at the center of the instant case.

2. Is Criminal Possession of Stolen Property a Continuing Offense?

In Penal Law § 1308, buying or receiving stolen property required an act that had one definable moment: when the defendant came into possession of the property in question. The Legislature is free to define criminal conduct in terms of "temporal or spatial units" ( Matter of Johnson v. Morgenthau, 69 N.Y.2d 148, 151, 512 N.Y.S.2d 797, 505 N.E.2d 240 [1987], quoting Brown v. Ohio, 432 U.S. 161, 169, 97 S.Ct. 2221, 53 L.Ed.2d 187 [1977] ) and has done so in some statutes (e.g., Penal Law § 220.39 [1 ] [knowingly and unlawfully sells ] ). But, the amendment to Penal Law § 165.40 removed that definable moment and transformed it into a continuing offense by replacing buying or receiving with possession. Possess "means to have physical possession or otherwise exercise dominion or control over tangible property" ( Penal Law § 10.00 [8 ] ).

While neither party cited New York case law on this proposition, and the court could not find a New York case on point for possessing stolen property, to hold otherwise would give rise to absurd results. If the court sided with the defense, then a person could buy any illegal narcotic or weapon, store it until the statute of limitations had run from its purchase date, and then walk around New York with narcotics or weapons out in the open if they had a receipt showing when they purchased or received the narcotic or weapon. "There is absolutely nothing indicating that the legislation intended that any person who unlawfully took possession of such items and avoided prosecution for the length of the statute of limitations could thereafter continue to possess such items with impunity" ( State v. Maidwell, 137 Idaho 424, 427, 50 P.3d 439, 442 [2002] ). Here, the New York State Legislature's 1965 amendment is direct evidence that it meant to move away from the non-continuing crime of "buying" or "receiving" stolen property and replace it with the continuing crime of "possessing" stolen property. Moreover, the Court of Appeals has found both criminal possession of a weapon and criminal possession of a controlled substance to be continuing crimes, albeit for double jeopardy and conspiracy purposes (see Matter of Johnson, id. ; People v. Curtis, 143 A.D.2d 1030, 533 N.Y.S.2d 582 [2d Dept. 1988] ; People v. Carvajal, 6 N.Y.3d 305, 812 N.Y.S.2d 395, 845 N.E.2d 1225 [2005] ). Those cases are germane, however, because criminal possession of a weapon, criminal possession of a controlled substance, and criminal possession of stolen property all rely on the same definition for "possession" ( Penal Law § 10.00 [8 ] ). Thus, it is logical that they are continuing crimes for all purposes.

This interpretation aligns New York with a majority of states that have found criminal possession of stolen property is a continuing crime (see State v. Lodermeier, 481 N.W.2d 614 [Sup. Ct. South Dakota 1992] ; State v. Lawrence, 312 N.W.2d 251 [Sup. Ct. Minnesota 1981] ; Commonwealth v. Farrar, 271 Pa. Super. 434, 413 A.2d 1094 [Sup. Ct. Pennsylvania 1980] ; State v. Reeves, 264 Ark. 622, 574 S.W.2d 647 [Sup. Ct. Arkansas 1979] ; State v. Knutson, 81 Or. App 353, 725 P.2d 407 [Ct. App. Oregon 1986], but see State v. Nistler , 268...