People v. Mitchell

• Decision Date: 25 April 1991
• Citation: 571 N.E.2d 701,569 N.Y.S.2d 393,77 N.Y.2d 624
• Parties: , 571 N.E.2d 701 The PEOPLE of the State of New York, Respondent, v. China MITCHELL, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 393

569 N.Y.S.2d 393

77 N.Y.2d 624, 571 N.E.2d 701

The PEOPLE of the State of New York, Respondent, v. China MITCHELL, Appellant.

Court of Appeals of New York.

April 25, 1991.

[77 N.Y.2d 625] [571 N.E.2d 702] Joseph O. Holmes and Philip L. Weinstein, New York City, for appellant.

Robert M. Morgenthau, Dist. Atty. (Nancy J. Dunn, Washington, D.C., and Norman Barclay, New York City, of counsel), for respondent.

OPINION OF THE COURT

BELLACOSA, Judge.

Defendant, acting as a "stall" in a pickpocketing ploy on the steps of the Metropolitan Museum of Art on Fifth Avenue in Manhattan on July 5, 1987, feigned illness and grabbed the "mark's" arm while the "dip" lifted the wallet, containing a credit card, from the "mark's" purse and slipped it to the defendant. The victim, holding on to her purse, grappled with defendant and regained possession of the wallet. Defendant then fled. She was pursued by bystanders and was quickly apprehended and arrested by a nearby police officer.

Defendant was convicted after a jury trial of grand larceny in the fourth degree (Penal Law § 155.30[4] [stealing property consisting of a credit card] and criminal possession of stolen property in the fourth degree (Penal Law § 165.45[2] [possession of stolen property consisting of a credit card]. The trial court overruled defendant's objection to its instruction to the jury that "a person who steals a credit card need not even be aware of the precise nature of what [she] has stolen to be charged with the full consequences of [her] criminal act". The Appellate Division affirmed, 161 A.D.2d 140, 554 N.Y.S.2d 858, and a Judge of this Court granted leave to appeal.

Defendant argues that the evidence of the possession count was insufficient because the People failed to prove that she knew the stolen wallet contained a credit card. We agree with the courts below and affirm the order of the Appellate Division upholding the conviction.

Penal Law § 165.45(2) provides, in part, that a person is guilty of criminal possession of stolen property "when [she] knowingly possesses stolen property, with intent to benefit [herself] or a person other than an owner thereof or to impede the recovery by an owner thereof, and when: * * * 2. The property consists of a credit card" (emphasis supplied). The offense at issue thus plainly contains two culpable mental states--"knowingly" which is tied to the possession of stolen property, and "intent" which modifies "to benefit" or "to impede" (Penal Law §§ 15.10, 15.15). Neither of these culpable mental states, by law or syntax, relates to any of the several aggravating factors tacked onto the definition of the offense (compare, People v. Register, 60 N.Y.2d 270, 276, 278, 469 N.Y.S.2d 599, 457 N.E.2d 704, cert. denied 466 U.S. 953, 104 S.Ct. 2159, 80 L.Ed.2d 544). The unmistakable effect and location of the adverb "knowingly" is to pinpoint the primary culpable mental state component only on the criminal possessory act. That culpable mental state does not also arc over to the particular aggravating characterization of the property stolen--here, a credit card.

The statute, in its traditional composition, forbids defendants from knowingly possessing stolen property, adding that the criminal possession be accompanied by an unlawful intent to benefit the wrongdoer or to impede recovery. The degree of the crime is elevated if the stolen property is a credit card or one of several other things. The People must prove defendant knew the property was stolen but are not required to prove that she was cognizant of the precise and usually varying nature of the property she possessed in order to support an indictment and sustain a conviction for the full consequences of the criminal act, i.e., at the highest degree of crime committed. "Knowledge of the existence of a specific article is not required if the defendant unlawfully acquires possession of a container [wallet] in which the article [credit card] is thereafter found" (3 Wharton's Criminal Law § 360, at 320 [Torcia 14th ed. 1980]; see also, People v. Timmons, 124 Misc.2d 766, 767, 478 N.Y.S.2d 777 [Sup.Ct., N.Y. County]; see also, People v. Boyajian, 148 A.D.2d 740, 741-742, 539 N.Y.S.2d 683, lv. denied 74 N.Y.2d 661, 543 N.Y.S.2d 404, 541 N.E.2d 433; People v. Burgin, 135 A.D.2d 1106, 523 N.Y.S.2d 320, lv. denied 71 N.Y.2d 893, 527 N.Y.S.2d 1002, 523 N.E.2d 309; People v. Magee, 98 A.D.2d 874, 471 N.Y.S.2d 164).

Our interpretation is consistent with the statutory interpretation in several of the cited lower court cases and is further buttressed by the Legislature's ensuing amendments to Penal Law § 165.45, which did not disturb that extant interpretation (see, L.1990, ch. 450, § 2; L.1987, ch. 556, § 11; L.1986, ch. 515, § 5; see also, Lucenti v. Cayuga Apts., 48 N.Y.2d 530, 541, 423 N.Y.S.2d 886, 399 N.E.2d 918; Matter of Trosk v. Cohen, 262 N.Y. 430, 435-436, 187 N.E. 566).

Defendant concedes that aggravating factors--such as the value of the property stolen--are factors to which a culpable mental state does not ordinarily attach. She contends, nevertheless, that the character of credit card stolen property is so integral to this offense that a culpable mental state must be judicially incorporated. The theory is that this particular factor elevating her possession to a felony range is so unique and different that it cannot be sustained without a culpable mental state element being added. Defendant is incorrect. This credit card factor is not essentially different in kind or effect from a host of other aggravating factors, and her proffered distinction or uniqueness does not warrant judicial engraftment of a culpable mental state that the Legislature chose not to insert in the statute as to any of the listed aggravating factors in Penal Law § 165.45(2).

That the Legislature declined to attach any culpable mental state to this aggravating circumstance is not unusual. The Penal Law is replete with offenses which contain aggravating factors which elevate the degree of criminal responsibility without coupling a requirement of proof of a culpable mental...