People v Johnson

People v Johnson 2014 NY Slip Op 09040 Decided on December 30, 2014 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 30, 2014
Sweeny, J.P., Andrias, Saxe, DeGrasse, Gische, JJ.
2596/09 13846A 13846

[*1] The People of the State of New York, Dkt. 50208C/10 Respondent,

v

Robert Johnson, Defendant-Appellant.

Seymour W. James, Jr., Center for Appellate Litigation, New York (Joanne Legano Ross of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Julia L. Chariott of counsel), for respondent.

Judgments, Supreme Court, Bronx County (Steven L. Barrett, J.), rendered July 5, 2011, convicting defendant, upon his pleas of guilty, of petit larceny and unauthorized use of a vehicle in the third degree, and sentencing him to concurrent terms of 1 year and 4 months, respectively, unanimously affirmed.

The misdemeanor information alleging unauthorized use of a vehicle in the third degree was not jurisdictionally defective. Defendant's employer at the time of the incident alleged that he was the lawful owner of the vehicle, that he gave defendant the keys to the vehicle to make deliveries in the morning and early afternoon of the date of the incident, and that he instructed defendant to return the keys by 2:00 p.m. The owner further alleged that he saw defendant in possession of the keys at 9:30 p.m. that day. Defendant's possession of the keys after the time he was supposed to have returned them established that he exercised control over or otherwise used the vehicle (see People v McCaleb , 25 NY2d 394, 399 [1969]). The allegation that defendant exercised control over the van without the owner's consent raised a presumption that he knew that he did not have such consent (see Penal Law § 165.05[1]), and such knowledge was also supported by the owner's instruction to defendant.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 30, 2014

CLERK