People v Pin (Matthew)

[*1] People v Pin (Matthew) 2013 NY Slip Op 51681(U) Decided on October 15, 2013 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 15, 2013
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Torres, JJ
570707/2011.

The People of the State of New York, Respondent,

against

Matthew Pin, Defendant-Appellant.

In consolidated criminal actions, defendant appeals

from two judgments of the Criminal Court of the City of New York, New York County (Diana Boyar, J.), rendered July 15, 2011, convicting him, upon his pleas of guilty, of petit larceny and theft of services, and sentencing him, as a youthful offender, to a concurrent jail term of 15 days.
Per Curiam.

Judgments of conviction (Diana Boyar, J., at plea, sentence and resentence), rendered July 15, 2011, affirmed.

The accusatory instruments underlying these consolidated criminal prosecutions were not jurisdictionally defective. The information relating to the initial, June 23, 2011 incident charged defendant with several offenses, including petit larceny. The factual portion of that information alleged, inter alia, that defendant approached two undercover transit police officers at the Chambers Street subway station
and offered to "let [them] in" in exchange for two dollars, and that defendant, upon receipt of payment, took out a key that he lacked "permission or authority" to possess, and used it to open an emergency exit gate, thus allowing himself and the two officers entry into the subway system and "depriving the ... Transit Authority of revenue otherwise owed it ...". The information stemming from the subsequent, July 7, 2011 incident charged defendant, as here relevant, with theft of services, based on the sworn statement of a transit police officer that he observed defendant enter the subway station at 23rd Street and Eighth Avenue "beyond the turnstiles ... and witout paying the required fare" by "walking through an exit gate."

"[G]iven a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 [2000]), the facts set forth in the People's pleadings adequately alleged that defendant committed petit larceny in connection with the Chambers Street subway incident and theft of services in connection with the 23rd Street subway incident. With respect to the former, the information established prima facie that defendant deprived the Transit Authority of the two dollar fee that he accepted from the ersatz subway riders through his unauthorized possession and use of a subway entrance key (see People v James, 101 AD3d 447, 448 [2012] [defendant committed petit larceny by using an altered MetroCard to sell "swipes" that rightfully belonged to the Transit Authority]; compare People v Hightower, 18 NY3d 249 [2011][involving defendant's unauthorized use of a valid MetroCard]). With respect to the more recent of the two subway incidents here involved, the allegations concerning defendant's entry into the subway [*2]system "by walking through an exit gate" and without paying the required fare, were "sufficiently evidentiary in character" (People v Allen, 92 NY2d 378, 385 [1998]) to establish the defendant's knowledge of his unlawful entry into the subway station and his intent to unlawfully obtain subway service (see People v Williams, 2001 NY Slip Op 40486[U][App Term, 1st Dept], lv denied 97 NY2d 689 [2001]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: October 15, 2013