The People of
the State of New York,
against
Jeremy Gutierrez, Defendant.
|
2013KN064030
For the People: Kenneth P. Thompson, Kings County District Attorney, by
Assistant District Attorney T. Peter Choi, 350 Jay Street, Brooklyn, New York
11201
Tel: 718-250-4956
For the Defendant: The Legal Aid Society, by Emily Winograd Leonard, 111
Livingston Street, Brooklyn, New York 11201
Tel: 718-243-6287
Laura R. Johnson, J.
By Notice of Motion dated April 7, 2014, defendant seeks dismissal of the
accusatory instrument charging him with the Unauthorized Use of a Vehicle in the Third
Degree (Penal Law § 165.05[1]) and the Criminal Possession of a Controlled
Substance in the Seventh Degree (Penal Law § 220.03), on the ground that it is
facially insufficient as to both those counts. The People oppose defendant's motion. For
the following reasons, defendant's motion is denied.
Facts
The accusatory instrument, sworn to by Police Officer Lydon Williams,
alleges that on or about August 16, 2013, between approximately 8:45 a.m. and 8:54 a.m.
at 100 Street and Fourth Avenue, County of Kings, New York:
Deponent states that at the above time and place, deponent observed
defendant sleeping inside a 2009 Lexus R35 NY State License No. ENK2469.
Deponent is informed by Grigoriy Leyzerenok that Grigoriy Leyzerenok is
the owner of the above-described vehicle and that the informant last observed vehicle in
a locked, secured and undamaged condition on 8/4/13, at 11:45 p.m., at 1410 Shore
Boulevard, and the defendant has neither [*2]permission
nor authority to operate that vehicle.[FN1]
The Deponent is informed by police officer Devin Damora Shield No. 5781,
of 164 Command, that, at the same time and place, the informant observed the defendant
in possession of a quantity of crack cocaine that was visible to passers-by in that the
informant did recover said quantity of crack cocaine from the driver's side door panel of
said Lexus R35 inside of which defendant was seated.
The People also filed a supporting deposition from Mr. Leyzerenok, in which he
swore to his firsthand knowledge of the information he had provided.
Analysis
Facial sufficiency is a non-waivable, jurisdictional prerequisite to a valid
prosecution and "may be challenged on appeal even though a defendant never raised the
alleged insufficiency prior to entering a guilty plea." People v. Kalin, 12 NY3d 225, 229 (2009). In order to be
facially sufficient, an information must substantially conform to the formal requirements
of Criminal Procedure Law ["CPL"] § 100.15. Additionally, the factual portion and
any accompanying depositions must provide reasonable cause to believe the defendant
committed the offense charged, as well as nonhearsay factual allegations of an
evidentiary character which, if true, establish every element of the offense charged and
defendant's commission thereof (CPL §§ 100.15[3]; 100.40[1]); see People
v. Dumas, 68 NY2d 729 (1986); see also People v. Alejandro, 70 NY2d 133
(1987).
In determining the facial sufficiency of an accusatory instrument, the court
must view the facts in the light most favorable to the People (People v. Contes,
60 NY2d 620, 621 [1983]). Although the requirement of nonhearsay allegations is a
"much more demanding standard" than a showing of reasonable cause alone
(Alejandro, 70 NY2d at 138, quoting 1966 Report of Temp Comm'n on
Revision of Penal Law and Crim. Code, Staff Comments), it is, nevertheless, a lower
burden than proof beyond a reasonable doubt (People v. Henderson, 92 NY2d
677, 680 [1999]; People v. Hyde, 302 AD2d 101 [1st Dept 2003]). Where the
factual allegations contained in an information "give an accused sufficient notice to
prepare a defense and are adequately detailed to prevent a defendant from being tried
twice for the same offense, they should be given a fair and not overly restrictive or
technical reading," People v. Casey, 95 NY2d 354, 360 (2000); see also People v. Konieczny, 2
NY3d 569 (2004). An information must set forth the required nonhearsay
evidentiary allegations within "the four corners of the instrument itself" or in annexed
supporting depositions. People
v. Thomas, 4 NY3d 143, 146 (2005).
The People contend that defendant has waived his claim of facial
insufficiency because he failed to make this motion within the 45 days from arraignment
allotted for motion practice. The People are mistaken. While a claim that an information
is defective because it contains hearsay is waived if not raised within that time, see
People v. Casey, 95 NY2d at 362-367, defendant's claim [*3]is not that the accusatory instrument contains hearsay.
Instead, he argues that it fails to contain any facts of an evidentiary nature from which it
can be determined that defendant exercised sufficient "control" over the complainant's
vehicle to violate Penal Law § 165.05(1). The Court of Appeals has held that "[a]n
information that . . . fail[s] to allege a complete element of the charged offense is
jurisdictionally defective and may be challenged on appeal even though a defendant
never raised the alleged insufficiency prior to entering a guilty plea." People v. Kalin, 12 NY3d
225, 229 (2009). Defendant is not barred from making the instant motion.
I. Unauthorized Use of a Vehicle in the Third Degree
"A person is guilty of unauthorized use of a vehicle in the third degree when:
knowing that he does not have the consent of the owner, he takes, operates, exercises
control over, rides in or otherwise uses a vehicle. A person who engages in any such
conduct without the consent of the owner is presumed to know that he does not have
such consent." Penal Law § 165.05(1).
Penal Law § 165.05 was enacted in 1965 (L 1965, ch 1030). It replaced
a narrower provision of the Penal Code, section 1293-a, which made it a felony for a
person, without the owner's consent, to "take, use or operate . . . an automobile,"
expanding the statutory prohibition to encompass "exercises control over" and "rides in,"
as well as "otherwise uses," as well as reducing the grade of crime to a misdemeanor for
a first offense. In this case, there is no contention that defendant "took" (stole) or
"operated" or "r[o]de in" the car in question; the sole issue is whether the claim that he
was found sleeping in the car is a sufficient allegation that he "exercise[d] control over"
or "otherwise use[d]" it.
The Court of Appeals first addressed the scope of this statutory language in
People v. McCaleb, 25 NY2d 394 (1969), and its companion case, People v.
Gibbs. The Court upheld both defendants' convictions for unauthorized use of a
vehicle. Defendant McCaleb had been found seated in the rear of an automobile with a
working key in the ignition. Defendant Gibbs was sleeping in the front passenger seat of
a vehicle with the motor running. Both cars had been stolen within hours of the
defendants' arrests. The Court unanimously rejected the contention that the prohibited
conduct covered by the new statute was limited to the actual asportation of vehicles, as it
had been in the earlier statute. People v. McCaleb, 25 NY2d at 395. The Court
opined that the newly added statutory language "or otherwise uses" would encompass
such exercises of control as "barring the owner or others from entry into the car" or
"temporary use of the vehicle, or its motor, for a purpose accomplished while the vehicle
remains or has become stationary." Id. at 399. While the Court plainly found that
the defendants' presence in recently-stolen cars that were still capable of being operated
was sufficient to bring their conduct within the purview of the statue, it made no attempt
to list or to define more precisely what other kinds of activity with respect to a stationary
car would violate it.
In People v. Roby, 39 NY2d 69 (1976), the Court revisited the issue.
The Court rejected Roby's claim that the facts that the car in question was not "recently"
stolen, that he had only been seated in it for a short time, and that the motor was off and
there was no key in the ignition were material distinctions warranting reversal of his
conviction for unauthorized use. But although it broadly declared that the statute "makes
criminal the unauthorized occupation of another person's vehicle, without his consent,
irrespective of whether or not the vehicle is in motion," the Court also took pains to point
out that Roby's co-defendant was seated behind the wheel and attempting to start the car
at the time of their arrest, which it deemed to be evidence that "parallel[ed]" that in the
McCaleb case. Id. at 71. Thus, it remained unclear after those two early decisions
whether unauthorized occupation of a car, standing alone, was enough to violate the
statute.
Most recently, the Court decided People v. Franov, 17 NY3d 58 (2011). In Franov,
the defendant was seen walking away from a vandalized car, and upon being stopped,
was found to be in possession of its computerized light module, as well as burglar's tools.
Reversing the Appellate Division, Second Department, the Franov majority
upheld his conviction for unauthorized use. The specific ground of the majority's
disagreement with the decision below (and with the dissent) was whether the statutory
prohibition "should be limited to instances in which the person charged had the means
and intent to operate the vehicle." The majority found that the broad statutory "use"
language was not consistent with such a limitation. People v. Franov, 17 NY3d at
63-64. On the other hand, it also rejected the view of a concurring judge that an
unauthorized entry alone constituted use within the intent of the statute. Franov,
17 NY3d at 64. Instead, the four judges joining the majority opinion held "that a
violation of the statute occurs when a person enters an automobile without permission
and takes actions that interfere with or are detrimental to the owner's possession or use of
the vehicle." Id. at 64.
The lower court decision reversed in People v. Franov (see People v. Franov, 71 AD3d
914 [2d Dept 2010]) was one in a line of cases in which the Second Department had
held that proof of the ability or intent to operate a car was necessary to make out the
unauthorized use crime. The line of cases includes People v. Gray, 154 AD2d
547 (2d Dept 1989), on which defendant now relies. To the extent that Gray
stands for the proposition that such proof is necessary, it is no longer good law.
The issue now before this Court is whether defendant's occupation of the car
constituted the kind of mere entry not contemplated by the statute or whether it
"interfere[d] with or [was] detrimental to the owner's possession or use" of it
(Franov, 17 NY3d at 844) — in other words, whether it reached the level
of activity the Court of Appeals interpreted the statute to cover in its Franov
decision.
The only post-Franov decision cited by defendant is People v.
Ryan, No. 2013KN024530 at 2 (Crim Ct, Kings County March 31, 2014) (Joanne D.
Quiñones, J.) (unreported). Ryan involved facts somewhat similar to those
in this case: a police officer observed the defendant sitting in the driver's seat of a car
without the owner's permission; the defendant stated he was "just sleeping." The court
found that the defendant's mere presence in the automobile was not proof that "the
defendant exercised a degree of control over the vehicle sufficient enough to constitute
an unauthorized use as contemplated by the statute." Ryan, No. 2013KN024530
at 4. In reaching this conclusion, the court relied in significant part on pre-Franov
decisions.
Actually falling asleep in a car belonging to another is surely more than a
transitory entry or presence. Many — if not most — owners would
effectively be "barred" from a car occupied by a slumbering stranger; in New York City,
ousting an intruder to regain possession before police could be summoned would be
unusually courageous, if not foolhardy. But even assuming that Ryan correctly
determined that a stranger's use of a vehicle as his bedroom is not sufficiently adverse to
the owner's possession or use of it, in this case defendant did more. Defendant allegedly
also possessed drugs that had been placed in the front door panel of the car. While
defendant disputes the sufficiency of the allegations as to this charge, this Court finds
them sufficient (see discussion below) and further finds that use of the car for this
independently illegal activity is detrimental to the owner's possession or use within the
scope of the Franov ruling. Although such use does not affect operability, use of
a vehicle as the site of criminal activity would not only be a still greater deterrent to its
repossession by any owner who found it thus, but might well result in its impoundment
for investigation by the police.
Therefore, the accusatory instrument charging the defendant with the
Unauthorized Use of a Vehicle in the Third Degree (Penal Law § 165.05[1]) is
facially sufficient.
II. Criminal Possession of a Controlled Substance in the Seventh
Degree
"A person is guilty of criminal possession of a controlled substance in the
seventh degree when he or she knowingly and unlawfully possesses a controlled
substance." Penal Law § 220.03. Although the presumption does not apply under
certain circumstances not applicable here, under Penal Law § 220.25(1), "[t]he
presence of a controlled substance in an automobile, other than a public omnibus, is
presumptive evidence of knowing possession thereof by each and every person in the
automobile at the time such controlled substance was found."
The "automobile presumption" of Penal Law § 220.25(1) applies when
the People can prove that the defendant was in the vehicle and the illegal drugs were also
found in the vehicle. See People v. Green, 133 AD2d 170, 173 (2d Dept 1987);
People v. Law, 173 AD2d 737, 738 (2d Dept 1991); People v. Goggins,
135 AD2d 560 (2d Dept 1987). Here, the information alleges the necessary predicate
facts to permit the inference under Penal Law § 220.25(1) that the defendant
knowingly possessed the crack cocaine found in the vehicle he, and he alone,
occupied.
Therefore, the charge of Criminal Possession of a Controlled Substance in
the Seventh Degree (Penal Law § 220.03) alleged in the accusatory instrument is
facially sufficient.Conclusion
For the reasons set forth above, defendant's motion to dismiss the accusatory
instrument is denied. This constitutes the Decision and Order of the Court.DATED:June
11, 2014
New York, New York
/s/
Laura R. Johnson, J.C.C.
Footnotes
Footnote 1:The People inexplicably
failed also to allege that defendant lacked Leyzerenok's permission or authority to
exercise control over or use the car, which is really the conduct that is alleged to have
violated the Unauthorized Use statute. However, defendant does not complain about this
technical omission and the Court will infer, as a matter of common sense, that
Leyzerenok also did not give defendant permission to use the stolen car in any other way.