People v. Velez

• Decision Date: 06 December 1990
• Citation: 565 N.Y.S.2d 950,149 Misc.2d 592
• Parties: The PEOPLE of the State of New York, v. Luis VELEZ, Defendant.
• Court: New York City Court

Page 950

565 N.Y.S.2d 950

149 Misc.2d 592

The PEOPLE of the State of New York, v. Luis VELEZ, Defendant.

Criminal Court of the City of New York Kings County, Part Jury 1.

Dec. 6, 1990.

Charles J. Hynes, Dist. Atty. (Julie Schwartz, Kings County Asst. Dist. Atty.) for the People.

Jacqueline Deane, Legal Aid Society, Brooklyn, for defendant.

WILLIAM MILLER, Judge.

Defendant Luis Velez moves to dismiss the instant accusatory instrument pursuant to CPL § 170.30(1)(a) on the grounds that the complaint fails to allege non-hearsay facts which establish every element of the crimes charged as required by CPL § 100.40(1)(c). Defendant's motion arises from the following set of facts:

The defendant was arrested on June 13, 1990 and charged with Unauthorized Use of a Vehicle in the Third Degree and Criminal Possession of Stolen Property in the Fifth Degree. The factual allegations of the complaint, in pertinent part, state, "... the deponent observed the defendant inside of a 1989 Chevy Baretta ... Deponent further states that deponent is informed by Angelo Campolattano that informant is the owner of the above vehicle ... and that defendant did not have permission nor authority to take, use or possess the vehicle." A corroborating affidavit from Angelo Campolattano, the owner of the car, was filed with the Court on June 27, 1990.

The defendant predicates his motion on the contention that the charge of Unauthorized Use of a Vehicle in the Third Degree requires "an exercise of dominion and control over the car, either mechanically or physically, to the exclusion of the owner's proprietary interest, even transitorily." See, People v. Gray, 154 A.D.2d 547, 546 N.Y.S.2d 387 (2nd Dept.1989). Defendant argues that, likewise, Criminal Possession of Stolen Property in the Fifth Degree also requires an exercise of dominion and control, citing Penal Law § 10.00(8). Defendant urges that a mere allegation of presence inside a vehicle is insufficient to constitute a violation of these statutes.

The People rebut that the corroborating affidavit from the owner, stating that the defendant was using the automobile without the permission or authority of the owner, sufficiently establishes the elements of the crime.

We disagree. Recent case law supports the proposition that the mere occupation of another's vehicle does not amount to taking, operating, exercising control over or otherwise using the vehicle as contemplated by the statutory language. See, People v. Murray, 143 Misc.2d 509, 541 N.Y.S.2d 331 (N.Y.C. Criminal Court, 1989). In Murray, supra, where the defendant was observed sitting on a motor scooter without the owner's consent, the Court held that such action did not amount to an "exercise of control over" or "other use" of a vehicle within the definition of an Unauthorized Use of a Vehicle in the Third Degree. In People v. Butler, 119 Misc.2d 1071, 465 N.Y.S.2d 477 (Sup.Ct., N.Y. County, 1983), the defendant was observed breaking the vent window of a parked car, and kneeling on the front passenger's seat facing the dashboard. The Court held that even this action did not amount to an "exercising of control over", "operation", "or otherwise use" of the vehicle.

In two earlier cases, namely People v. McCaleb, 25 N.Y.2d 394, 306 N.Y.S.2d 889, 255 N.E.2d 136 and People v. Roby, 39 N.Y.2d 69, 382 N.Y.S.2d 739, 346 N.E.2d 540, the Court of Appeals did recognize that operation of the vehicle was not an element of Unauthorized Use of a Vehicle in the Third Degree (P.L. 165.05). In McCaleb, supra, although the defendant was found seated in the rear of a recently stolen parked automobile, there was an operable key in the ignition. In R...