People v. McLaughlin

• Decision Date: 18 January 1978
• Citation: 402 N.Y.S.2d 137,93 Misc.2d 980
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Terrence McLAUGHLIN, Defendant. *
• Court: New York Supreme Court

Page 137

402 N.Y.S.2d 137

93 Misc.2d 980

The PEOPLE of the State of New York, Plaintiff, v. Terrence McLAUGHLIN, Defendant. ^*

Supreme Court, Criminal Term, Queens County, Part 12.

Jan. 18, 1978.

Norman T. Corenthal, Brooklyn, Phillip R. Bensi, East Meadow, Edward C. Montell, Long Island City, Alan C. Lippel, Brooklyn, Ressler & Agate, Kew Gardens, Turano, Piacentini & Menoudakos, Anthony V. Lombardino, Ozone Park, Peter McKay, Louis S. Goldberg, New York City, Antonio Loiti, Arthur A. Nizza, Abraham Werfel, Jamaica, Fino & Fino, Jack Solomon, New York City, Bernard Hirschhorn, Paul Rubenfeld, Kew Gardens, Alan Drezin, Emanuel Growman, Martin Erdmann, William Pesce and David H. Weiss, New York City, for defendants.

John J. Santucci, Dist. Atty. (Richard E. Brook, Asst. Dist. Atty., of counsel), for plaintiff.

AARON F. GOLDSTEIN, Justice.

These are separate motions by separate defendants to inspect the Grand Jury minutes in their respective cases and based on such inspection, to dismiss the indictments. Inasmuch as the issues in all cases are the same, they will be considered together in this single opinion for the limited purpose of the motions to dismiss.

The indictments, in separate counts, charge the various defendants with the felony of grand larceny in the theft of electricity from the Consolidated Edison Company, and also with the theft of services, a Class A misdemeanor, with respect to the same electricity. Basically, the indictments are founded on proof presented to the Grand Jury that there was a tampering with meters measuring the electricity supplied to premises allegedly owned or operated by the various defendants, with the result that the electricity passed through those meters without proper measurement and consequently without proper charge. There are five basic questions presented for consideration:

(1) May electric current be the subject of larceny in the first instance, and if it may, is meter-tampering a sufficient "asportation" to constitute a larceny of the electricity?

(2) Does the enactment of the special misdemeanor provision regarding theft of services exclude prosecution of the theft as a larceny?

(3) Is the presumption created by the misdemeanor meter tampering section constitutional?

(4) Are any presumptions applicable to the alleged larceny of the electricity?

(5) Is the evidence presented to the Grand Jury in these cases legally sufficient to uphold the indictments?

I. THE LARCENY OF ELECTRICITY

While concededly the question of larceny of electricity has not often been the subject of adjudication, nevertheless in all the cases where the issue has in fact been directly confronted, the judicial answer has been uniform and unanimous: metered electricity, as well as natural gas, water in pipes, heat, power, and similar forms of "intangible" energy, are of sufficient "concreteness" to be the subject of larceny. The absence of New York case law dealing with the issue calls for an examination of the decisions in other jurisdictions. In all the cases, of course, the issue is governed by the specific terms of the applicable criminal statutes, and before turning to the precise language of the New York law, it should be pointed out that our statute is at least as broad, and often more so, than the statutes considered in the other jurisdictions.

As far back as 1918, the commentator in Lawyers Reports Annotated found no difficulty in stating categorically that "It is well settled . . . that meter and gas in pipes, as well as electricity, may be subjects of larceny." (L.R.A. 1918c, 580, citing English and American cases dating back to 1853.) In 1922, L.R.A.'s successor, American Law Reports, posited the flat proposition that a diversion of gas from pipes so as to avoid a meter constitutes an "asportation" sufficient to support a charge of larceny. (19 A.L.R. 724, 729), and then in 1938 a follow-up annotation was published confirming the basic proposition that water, electricity, and gas may be the subjects of larceny, without a single case in opposition. (113 A.L.R. 1282.) Admittedly, the cases cited in all these secondary sources are few, and involve decisions from England, the Phillipines, and Canada, as well as from this country, but we rely here not so much on the decisions as authorities which bind us, but rather on the immutable logic behind those decisions. In 1937, some years after these annotations, the Supreme Court of Illinois considered the subject in depth, evaluating not only the reported cases, but as well, the testimony of an electrical engineer as to the precise nature of electrical energy. After reviewing a number of State decisions (Pennsylvania, New York, Colorado, New Jersey, Nebraska, West Virginia, Alabama, Indiana) and one United States Supreme Court decision, Ashwander v. Tennessee Valley, 297 U.S. 288, 56 S.Ct. 466, 80 L.Ed. 688 (1936), all of which affirmed that electrical energy is personal property, specifically a "commodity" or a "manufactured product" within the meaning of civil statutes governing the taxation and regulation of manufacturing companies, the Illinois Court adopted the rationale of the previous electricity-larceny decisions, quoting extensively therefrom. Thus, the Court repeated that:

" 'The true tests of what is a proper subject of larceny seems to be not whether the subject is corporeal or incorporeal, but whether it is capable of appropriation by another than the owner. It is well settled that illuminating gas may be the subject of larceny, even in the absence of a statute so providing. * * * Electricity, the same as gas, is a valuable article of merchandise, bought and sold like other personal property and is capable of appropriation by another.' " People v. Menagas, 367 Ill. 330, 337, 11 N.E.2d 403, 407 (1937).

A number of additional cases, post-dating the annotations previously cited, take the same position: Reynolds v. State, 101 Ga.App. 715, 115 S.E.2d 214 (1961); Helvey v. Wabash Co. REMC, 151 Ind.App. 176, 278 N.E.2d 608 (1972); State v. Curtis, 148 N.J.Super. 235, 372 A.2d 612 (1977); Selman v. State, 406 P.2d 181 (Sup.Ct.Alaska, 1965); People v. Kraus, 377 Ill. 539, 37 N.E.2d 182 (1941). In sum, the bald proposition that electricity may be the subject of larceny cannot now, at this late date, admit of any doubt. Indeed, research reveals not one single decision to the contrary.

Significantly, defense counsel, presumably searching the law with at least a modicum of care, cite no case opposing the use of a larceny statute to cover the theft of electricity. In the one New York decision cited as taking a contra view, People v. Ashworth, 220 App.Div. 498, 222 N.Y.S. 24 (4th Dept. 1927), what was actually involved was the use by defendant of the facilities of a mill, its machinery, etc. (which is to say a use of machinery in place as opposed to a carrying away of a product like electricity), and as a matter of fact that very same decision, in denying that such use of facilities could constitute a larceny, nonetheless acknowledged in the clearest possible language that "Electricity and gas have been held to be the subject of larceny", 220 App.Div. 501, 222 N.Y.S. 28, so that the very case, and the only case, cited by defense counsel in support of the defense position, is actually authority to the direct contrary.

The cases and annotations, in holding that electricity may be the subject of larceny, are necessarily holding that it is property subject to asportation, and in most of the cases the asportation occurs by means of a diversion of the current or water from the meter which measures the flow from supplier to consumer. Examination of the New York Statute supports the view that an asportation occurs by meter tampering. The asportation sections of our larceny statute are embodied in Article 155 of the Penal Law. Larceny is defined as a "taking, obtaining or withholding" of "property" with the intent either to "deprive" another of said "property" or to "appropriate" same for one self or another. (155.05-1, 2.) "Property" is defined to include "any article, substance or thing of value" (155.00-1). "Deprive" is defined to include withholding the property "under such circumstances that the major portion of its economic value or benefit is lost to" the owner (155.00-3). Clearly, then, the meter tamperer who, by such tampering, has received electric current without payment has "taken" or "obtained" an "article of value" under circumstances amounting to a "deprivation" in that "the major portion" of the "economic value" of this "property" is lost to the owner. It follows without any possibility of doubt that where the meter tamperer receives for himself the diverted electricity he has thereby committed larceny under the New York Statute.

II. THE EFFECT OF THE MISDEMEANOR "THEFT OF SERVICES" SECTION

It is contended by defense counsel that the Legislature, in enacting the detailed Theft of Services section of the Penal Law (165.15), has, by that section, in effect pre-empted the field with respect to meter tampering, with the result that every case of such tampering involves simply a theft of services and nothing more. If the Legislature intended a theft of electricity to constitute a larceny, defense counsel argues, then it would simply have enacted an additional larceny sub-section including the theft of electricity as one of the higher or lower degrees of larceny itself.

The argument, for all its superficial appeal, is an excellent example of the widespread confusion with respect to the search for the "legislative intention" in statutes generally and in Penal Laws specifically. That judicial search, continuous, persistent, often tortured, has yielded a number of elementary rules known as canons of statutory construction, and it is with respect to one of these canons that defense counsel suffers a misapprehension. Thus, where two statutes, or two separate provisions in one statute, are in conflict with each other, and one of...