People v. Robinson

• Decision Date: 13 November 1978
• Citation: 411 N.Y.S.2d 793,97 Misc.2d 47
• Parties: PEOPLE of the State of New York v. Charles ROBINSON.
• Court: New York Supreme Court

Page 793

411 N.Y.S.2d 793

97 Misc.2d 47

PEOPLE of the State of New York v. Charles ROBINSON.

Supreme Court, Criminal Term, Kings County, Part 18.

Nov. 13, 1978.

Eugene Gold, Dist. Atty. of Kings County by David Michael Israel, Asst. Dist. Atty., for the State.

Segal Goodman, Leitner & Goodman, Brooklyn, for defendant Robinson; Jerome M. Leitner, Brooklyn, of counsel.

MEMORANDUM

NORMAN J. FELIG, Judge.

The defendant, indicted for the crimes of grand larceny in the second degree (six counts), grand larceny in the third degree (three counts), petit larceny (one count), criminal tampering in the second degree (five counts), and theft of services (five counts) brings this omnibus motion to (1) inspect the grand jury minutes and dismiss the indictment due to insufficient evidence before the grand jury; (2) to dismiss specific counts in the indictment because they are duplications of and inconsistent with other counts and (3) to dismiss the theft of services counts on the ground that the presumption created by section 165.15 of the Penal Law is unconstitutional.

The counts charged in the indictment arise out of the theft of approximately 3,391,000 cubic feet of gas from the Brooklyn Union Gas Company during the period from May 21, 1975 to June 17, 1977. The theft of gas was accomplished through bypasses, pieces of pipe attached to the gas company's lines, which allow one who is not a gas customer to obtain gas by tapping gas company lines and receiving free service.

The evidence adduced before the Grand Jury discloses that the defendant and his wife are the owners of the two multiple-dwellings located at 195 Bedford Avenue and 1118 Madison Street, in Brooklyn. Gas service which provided heat and hot water for the buildings was supplied by the Brooklyn Union Gas Company. The monitoring of the gas service was done through meters located in the basements, which were kept locked. The meters were subsequently removed. The meter at 195 Bedford Avenue was removed in June of 1976 after service had been terminated the previous November and the meter at 1118 Madison Street had been removed in June of 1975 after service had been terminated the previous month. Thereafter, on four different occasions bypasses were found at 195 Bedford Avenue and twice at 1118 Madison Avenue. A Brooklyn Union Gas Company serviceman testified that the defendant was present, in the basement, at the time he found a bypass at 1118 Madison Street. He said that the defendant "made a statement in reference of taking care of me if I didn't turn him in." He said he told the defendant that he could not do that. The Brooklyn Union Gas Company claims the value of gas service received in both buildings through the bypasses amounted to $9,997.00 for which it was not paid.

I. SUFFICIENCY OF THE EVIDENCE

The defendant seeks a dismissal of the indictment on the ground that the evidence adduced before the grand jury was not legally sufficient to support each count in the indictment. The court has read the grand jury minutes and finds that the evidence adduced before the grand jury was legally sufficient and that there was reasonable cause to believe that the defendant committed the crimes charged in each count.

II. DUPLICATIONS AND INCONSISTENT COUNTS

The defendant erroneously alleges that several of the larceny counts should be dismissed because they are duplications of other counts. He claims that counts seven and four charging grand larceny in the second degree overlap and counts ten and thirteen charging grand larceny in the third degree overlap in that they cover the same time periods, the same owner and a common scheme or plan and therefore constitute but two larcenies, not four as charged in the indictment.

The Court of Appeals, in People v. Cox, 286 N.Y. 137, 36 N.E.2d 84, held that " '(w)here the property is stolen from the same owner and from the same place by a series of acts, if each taking is the result of a separate, independent impulse, each is a separate crime; but if the successive takings are all pursuant to a single, sustained, criminal impulse and in execution of a general fraudulent scheme, they together constitute a single larceny, regardless of the time which may elapse between each act (citation omitted)' " (286 N.Y. 137, 142-43, 36 N.E.2d 84, 86). However, the question of whether the series of acts constitutes one larceny or more than one is an issue of fact for the jury to determine (People v. Daghita, 276 App.Div. 20, 92 N.Y.S.2d 799).

The defendant also seeks the dismissal of either the larceny or theft of services counts in the indictment on the grounds that they are inconsistent and cannot stand together in that gas, which is the subject of both offenses is defined as two different things, to wit: property and a service. Those counts charging a larceny state that the defendant "pursuant to a common scheme and plan, did steal property, to wit: a quantity of gas,". The counts charging theft of services state that the defendant "did knowingly accept or receive the use or benefit of service, to wit: gas." The defendant argues that gas cannot be both "property" and a "service". This court does not agree and finds no inconsistency in defining gas as "property" in one offense and as a "service" in another.

Section 155.05, subd. 1, of the Penal Law defines the offense of larceny and states that "(a) person steals property and commits a larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof."

"Property" is defined in section 155.00, subd. 1, of the Penal Law as "any money, personal property, real property, thing in action, evidence of debt or contract, or any article, substance or thing of value."

A person is guilty of theft of services as defined by Penal Law section 165.15, subd. 6, when "(h)e knowingly accepts or receives the use and benefit of service, including gas, steam or electricity service, which should pass through a meter but has been diverted therefrom, or which has been prevented from being correctly registered by a meter provided therefor, or which has been diverted from the pipes, wires or conductors of the supplier thereof."

Subdivision 8 of Penal Law section 155.00 defines "service" as " * * * the supplying of commodities of a public utility nature such as gas, electricity, steam and water."

In People v. Neiss, 92 Misc.2d 839, 401 N.Y.S.2d 422, the court noted that the crimes of larceny and theft of services are essentially different even though the same facts are alleged in both crimes. Larceny on the one hand, is defined as the "wrongful taking" or stealing of property. Theft of services, on the other hand, is the interference with service, in this case the commodity of gas. The court found that gas, which is classified by statute as a service and a commodity (Penal Law § 155.00, subd. 8), can also be defined as property (92 Misc.2d 839, 841, 401 N.Y.S.2d 422, 424) and therefore can be the subject of larceny.

The case of People v. McLaughlin, 93 Misc.2d 980, 402 N.Y.S.2d 137 is applicable to the case at bar in its discussion of an indictment charging the crimes of larceny and theft of services, even though McLaughlin involved the tampering with an electric meter and the theft of electricity, not gas. The defendant in McLaughlin argued that the theft of services statute (Penal Law § 165.15), a specific statutory provision, preempted the field, so that every case of meter tampering involves merely a theft of services, not a larceny under Article 155 of the Penal Law, a general statutory provision. The court found that the defendant had misconstrued the legislative intent and held it is only where two statutory provisions are in conflict, and one is general and the other specific, that the specific will control. The court stated: "(t)here is no conflict at all here both provisions are in utter harmony. It is perfectly true that both provisions impose, in some areas, different punishments for the same acts, but this is hardly a conflict; rather it is a coalescence, and yet another canon is thereby called into play, wherever possible, all parts of a statute are to be read together, construed together, and harmonized with each other (citations omitted)." (McLaughlin, supra, at 985-86, 402 N.Y.S.2d at 141).

Statutory duplication is not uncommon and when the implications of a statute are quite clear, there should never be a search for the legislative intent. The legislative intent in this case is quite clear "that a taking of electricity shall constitute larceny and shall also constitute a theft of services * * * (therefore) a person who steals electricity commits two separate crimes." (McLaughlin, supra, at 986, 402 N.Y.S.2d at 141). Applying that reasoning to the case at bar, the defendant's alleged unlawful taking of gas constituted both a larceny and theft of services. Therefore, the larceny counts and the theft of services counts in the indictment are not inconsistent. The evidence adduced before the Grand Jury was sufficient to charge the defendant with both of these offenses. That branch of the motion which seeks a dismissal of either the larceny count or the theft of services count is denied.

III. CONSTITUTIONALITY OF PENAL LAW SECTION 165.15

The defendant also seeks a dismissal of the theft of services counts on the ground that the presumptions created by the theft of services statute, Penal Law, section 165.15, subds. 5 and 6, are unconstitutional in that: 1. they fail to meet the constitutional guidelines necessary to uphold a presumption, and 2. they transfer the burden of proof from the People to the defendant.

Penal Law, section 165.15, subds. 5 and 6 deal with the theft of a utility service. However, subd. 5 involves meter tampering with which we are not concerned. The theft of services in this case was allegedly accomplished directly from the gas...