People v. Simmons

• Decision Date: 23 May 1988
• Citation: 528 N.Y.S.2d 984,139 Misc.2d 859
• Parties: The PEOPLE of the State of New York v. Michael SIMMONS, Defendant.
• Court: New York City Court

Page 984

528 N.Y.S.2d 984

139 Misc.2d 859

The PEOPLE of the State of New York v. Michael SIMMONS, Defendant.

Criminal Court of the City of New York Bronx County, Jury Part 8.

May 23, 1988.

Paul T. Gentile, Dist. Atty., New York City (John F. Della Jacono, Brooklyn, of counsel) for the People.

Steven Gordon, New York City, for defendant.

JAMES H. FOGEL, Judge:

Defendant is charged by information with petit larceny, criminal possession of stolen property in the fifth degree, unauthorized use of a motor vehicle in the third degree and criminal mischief in the fourth degree, in that he was a passenger in a stolen and damaged car. Defendant has moved to dismiss the charges on the ground that the information fails to conform to the requirements of CPL Section 100.40. In particular, defendant claims that the factual portion of the information fails to "establish ... every element of the offense[s] charged and the defendant's commission thereof." CPL Sect. 100.40(1)(c).

The court holds that a mere passenger does not possess a car. Therefore, the larceny, possession of stolen property and criminal mischief charges must be dismissed. The information does establish that defendant used the car and therefore is sufficient as to the crime of unauthorized use of a vehicle.

The factual portion of the information, after alleging that defendant and his co-defendant lacked permission or authority to take or use the vehicle in question, reads: "Deponent further states that he observed both defendants in the above vehicle, and that the car was running and that the steering column had been broken." There is no allegation that defendant was the driver of the car. Thus, for the purposes of this motion, it must be assumed that defendant was merely a passenger. (In fact, both parties agree that defendant was a passenger and not the driver of the car.)

The first matter to be considered is what constitutes sufficient factual allegations in an information. A misdemeanor complaint--which is not an instrument on which a defendant can be prosecuted (CPL Sect. 100.10[4] )--must contain evidentiary facts "supporting or tending to support the charges." CPL Section 100.15(3). Those facts need only provide "reasonable cause to believe that the defendant committed the offense charged." CPL Section 100.40(4)(b). On the other hand, an information must contain factual allegations that "establish" every element of an offense. CPL Section 100.40(1)(c). That requirement can only mean that the factual allegations in the information must constitute a prima facie case. That is the interpretation of Judge Bellacosa's Practice Commentary to Section 100.40 (McKinney's Cons. Laws of NY, Book 11A, at 67) as well as that of courts that have considered the question. People v. Harvin, 126 Misc.2d 775, 777, 483 N.Y.S.2d 913 (1984); People v. Crisofulli 91 Misc.2d 424, 430, 398 N.Y.S.2d 120 (1977).

Applying this standard to the instant case, it is apparent that the facts alleged in the information do not make out a prima facie case that defendant possessed the vehicle in question. The Penal Law defines "possess" as meaning "to have physical possession or otherwise to exercise dominion or control." Section 10.00(8). Clearly a passenger in a car cannot be said to possess that car except to the extent that the driver is under his control or he and the driver are otherwise acting in concert. E.g. People v. Hadley, 67 A.D.2d 259, 415 N.Y.S.2d 719 (1979). A passenger cannot control physically what is done with a car. Nor could it be inferred from mere presence in the car that a passenger had the power to sell, direct or otherwise dispose of the property. The element of possession cannot depend at all on the fact that the car in the instant case was stolen--a separate and independent element from that of possession. Defendant can no more be said to have been in possession of the car than could an ordinary passenger in an ordinary car, who certainly does not, in any sense of the word, possess it.

The brief opinion of the Court of Appeals in In re Diane S., 18 N.Y.2d 973, 278 N.Y.S.2d 211, 224 N.E.2d 719 (1966) confirms this conclusion. In that case, the Court considered whether a passenger in a stolen car could be convicted under Section 1293-a of the then-Penal Law which made it a crime "under circumstances not constituting larceny ... [to] take use or operate ... an automobile," without the consent of the owner. The Court held:

The statute does not apply to one who accepts a ride in an automobile, even knowing it to have been taken without the owner's consent, unless he was implicated or...