People v. Ludolph

• Full Citation: People v. Ludolph, 407 N.Y.S.2d 85, 63 A.D.2d 77 (N.Y. App. Div. 1978)
• Decision Date: 13 July 1978
• Citation: 63 A.D.2d 77,407 N.Y.S.2d 85
• Parties: PEOPLE of the State of New York, Respondent, v. Albert LUDOLPH, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 85

407 N.Y.S.2d 85

63 A.D.2d 77

PEOPLE of the State of New York, Respondent, v. Albert LUDOLPH, Appellant.

Supreme Court, Appellate Division,Fourth Department.

July 13, 1978.

Edward J. Nowak, Rochester, for appellant (William Hasenauer, Rochester, of counsel).

Lawrence T. Kurlander, Dist. Atty., Rochester, for respondent (Stephen Brent, Asst. Dist. Atty., of counsel).

Before MARSH, P. J., and MOULE, SIMONS, DILLON and SCHNEPP, JJ.

DILLON, Justice:

The jury found defendant guilty of criminal possession of stolen property in the first degree (Penal Law, § 165.50) as charged in a single-count indictment. On appeal, he argues that the pretrial notice which was served upon him pursuant to section 710.30 of the Criminal Procedure Law was prejudicially incomplete; that the trial court erred in refusing to charge unauthorized use of a vehicle as a lesser included offense of criminal possession of stolen property; and that he was denied his constitutional right to a public trial.

On February 18, 1976, as the defendant and one Kenneth Steely, aged 18 and 15 respectively, walked through the parking lot of Milbury Oldsmobile in the City of Rochester, the defendant observed keys inside of a parked Oldsmobile. According to Steely, who testified as a prosecution witness, the defendant asked him if he wanted to "take" the car, and he agreed. There had been no prior discussion between the two about stealing a car.

They entered the vehicle and after the defendant drove for a period of time, they stopped at another lot, removed a license plate from a parked vehicle and affixed it to the rear of the Oldsmobile. At some point thereafter, the defendant had the car filled with gasoline and left the station without paying the attendant. Later that day, after driving the defendant to his home, Steely parked the car in an empty lot and removed the keys.

On the following morning Steely, accompanied by Bobby Bryan, 16 years of age, returned to the car and drove it to the defendant's home where they were joined by the defendant. After operating the car for a while the defendant entered another gas station and ordered gasoline. Again he drove off without paying. Shortly thereafter, the three young men were apprehended by the Rochester police following a high-speed chase.

Prior to trial, the People served a notice upon the defendant pursuant to section 710.30 of the Criminal Procedure Law which stated that:

"The People intend to offer evidence of a statement made by the defendant to a public servant. Oral admission to Det. King that defendant had stolen the car February 18, 1976 and had used the car two days."

Upon the trial as the prosecutor undertook inquiry of Detective King as to the police interrogation of the defendant following his arrest, the trial judge asked whether there had been a pretrial Huntley hearing. Defense counsel replied that he didn't want a hearing because the People had furnished "a statement of what is going to be said and I am satisfied with that statement."

Detective King then testified that the defendant said that he took the car from Milbury Oldsmobile and that he drove it around for two days. As Detective King recounted that he had asked the defendant when he planned to return the vehicle, defendant's counsel objected on the ground that such testimony was outside the scope of the CPL 710.30 notice. The objection was overruled and King testified that the defendant said "that he was planning to use the vehicle until he either got stopped by the police or something happened to it".

It is clear on this record that such testimony impaired the defendant's claim that he was not guilty of the particular crime charged. The cross-examination of the People's witnesses was intended to show that the taking of the automobile was an impulsive rather than a reflective act; that the defendant engaged in no discussion with his accomplices about dismantling or keeping the automobile; and that the vehicle was recovered in an undamaged condition. It is evident from the cross-examination that counsel was attempting to characterize the defendant's conduct as constituting the lesser offense of unauthorized use of a vehicle (Penal Law, § 165.05, subd. 1) and thus Detective King's testimony as to defendant's statement of his plan for retention of the automobile was of crucial importance.

While a notice pursuant to section 710.30 of the Criminal Procedure Law need not contain a verbatim report of a defendant's oral statement, the failure, as here, to include a significant admission rendered the notice deficient to the extent of the omission (see People v. Greer,42 N.Y.2d 170, 397 N.Y.S.2d 613, 366 N.Y.S.2d 273) and served to frustrate the defendant's opportunity to prepare an appropriate defense (see People v. Briggs, 38 N.Y.2d 319, 379 N.Y.S.2d 779, 342 N.E.2d 557). While the deficiency might have been cured at trial upon a showing of good cause, the trial court would nonetheless have been required to afford the defendant "reasonable opportunity to make a suppression motion" (CPL 710.30, subd. 2). The deficiency was unexplained in the record, however, and the defendant's objection to the disputed testimony was summarily overruled. Its admission under such circumstances constituted reversible error (CPL 710.30, subd. 3).

We next address the issue of whether unauthorized use of a vehicle should have been submitted to the jury as a lesser included offense of criminal possession of stolen property in the first degree. The defendant's request for such a charge was denied.

"Lesser included offense" is defined in subdivision 37 of section 1.20 of the Criminal Procedure Law as follows: "When it is impossible to commit a particular crime without concomitantly committing, by the same conduct, another offense of lesser grade or degree, the latter is, with respect to the former, a 'lesser included offense.' "

In People v. Graham, 57 A.D.2d 478, 394 N.Y.S.2d 982, aff'd 44 N.Y.2d 768, 406 N.Y.S.2d 36, 377 N.E.2d 480, decided April 25, 1978, Justice Witmer summarized the principles applicable to a determination of whether an offense is a "lesser included offense":

"It is settled law that 'if, upon any view of the facts, a defendant could properly be found guilty of a lesser degree or an included crime, the trial judge must submit such lower offense' (People v. Mussenden, 308 N.Y. 558, 561-562, 127 N.E.2d 551, 553). Thus, before the court may charge a 'lesser included offense' it must be satisfied (1) that the offense in question meets the statutory definition of a lesser included offense of the crime charged in the indictment and (2) that a reasonable view of the evidence would support a finding that the defendant committed the lesser offense but did not commit the greater (CPL 300.50; People v. Johnson, 39 N.Y.2d 364, 367, 384 N.Y.S.2d 108, 109, 348 N.E.2d 564, 565-66, and see People v. Greer, 49 A.D.2d 297, 301, 374 N.Y.S.2d 224, 228-229). However, if it appears that an additional element or fact must be shown to be present in the lesser crime, then it may not be found to be included in the greater crime (People v. Acevedo, 40 N.Y.2d 701, 389 N.Y.S.2d 811, 358 N.E.2d 495; People v. Moyer, 27 N.Y.2d 252, 317 N.Y.S.2d 9, 265 N.E.2d 535)." (57 A.D.2d 478, 482, 394 N.Y.S.2d 982, 985.)

The People argue that it is possible to commit criminal possession of stolen property without concomitantly committing unauthorized use of a vehicle because the latter contains a necessary element not included within the former, i. e., the use of a vehicle. That argument must fail, however, since its efficacy requires that we superimpose "the 'impossibility' formula of lesser included offense upon the abstract statutory language" rather than focusing the definitional test, as we must, upon the particular facts of the case on trial (People v. Stanfield, 36 N.Y.2d 467, 472, 369 N.Y.S.2d 118, 122, 330 N.E.2d 75, 78; People v. Hayes, 43 A.D.2d 99, 101, 349 N.Y.S.2d 869, 871, aff'd 35 N.Y.2d 907, 364 N.Y.S.2d 897, 324 N.E.2d 365).

While it is true that "(w)henever the putative lesser crime requires proof of an element not required by the greater one, * * * there is no inclusion" (People v. Acevedo, 40 N.Y.2d 701, 706, 389 N.Y.S.2d 811, 815, 358 N.E.2d 495, 498), it does not follow that unauthorized use of a vehicle is a noninclusive offense in the circumstances of this case. The issue must be resolved "within the confines of the acts specified in the indictment or on the trial evidence offered to support it" (People v. Henderson, 41 N.Y.2d 233, 235, 391 N.Y.S.2d 563, 566, 359 N.E.2d 1357, 1359) and not on "some variation of the greater offense that is not attributed to the defendant" (People v. Hayes, 43 A.D.2d 99, 101, 349 N.Y.S.2d 869, 872, aff'd 35 N.Y.2d 907, 364 N.Y.S.2d 897, 324, N.E.2d 365, supra).

The stolen property which the defendant was alleged to have criminally...