People v Rourke (Sean)

[*1] People v Rourke (Sean) 2014 NY Slip Op 51150(U) Decided on July 24, 2014 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 24, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : ALIOTTA, J.P., PESCE and WESTON, JJ.
2010-465 K CR and2010-466 K CR

The People of the State of New York, Respondent,

against

Sean Rourke, Appellant.

Appeals from two judgments of the Criminal Court of the City of New York, Kings County (William L. McGuire, J.), rendered December 15, 2009. The judgments convicted defendant, upon his pleas of guilty, of unauthorized use of a vehicle in the third degree and possession of burglar's tools, respectively.

ORDERED that, on the court's own motion, the appeals are consolidated for purposes of disposition; and it is further,

ORDERED that the judgments of conviction are affirmed.

On May 18, 2009, the People charged defendant, in a misdemeanor complaint, with criminal mischief in the fourth degree (Penal Law § 145.00 [1]) and unauthorized use of a vehicle in the third degree (Penal Law § 165.05 [1]). On September 9, 2009, the People charged defendant, in a separate accusatory instrument, with possession of burglar's tools (Penal Law § 140.35). On December 15, 2009, defendant appeared before the Criminal Court, and, pursuant to a comprehensive plea and sentencing agreement, pleaded guilty to possession of burglar's tools and to unauthorized use of a vehicle in the third degree in satisfaction of the accusatory instruments, and was sentenced to concurrent terms of six months' incarceration. Defendant has served his sentences.

On appeal, defendant argues that the accusatory instrument alleging possession of burglar's tools was jurisdictionally defective and, because the plea thereto was part of an integrated plea and sentencing agreement, the vacatur and dismissal of that accusatory instrument requires that the judgment of conviction of unauthorized use of a vehicle in the third degree, as charged in the first accusatory instrument, also be vacated. For the reasons that follow, the judgments of conviction are affirmed.

As defendant did not waive prosecution by information, the facial sufficiency of the accusatory instrument must be reviewed according to the requirements of an information (see CPL 100.10 [1]; 170.65 [1], [3]; People v Kalin, 12 NY3d 225, 228 [2009]; People v Weinberg, 34 NY2d 429, 431 [1974]; People v Chan, 36 Misc 3d 44, 46 [App Term, 2d, 11th & 13th Jud Dists 2012]). An information is sufficient on its face if it contains nonhearsay factual allegations of an evidentiary nature which establish, if true, every element of the offense charged and the defendant's commission thereof (see CPL 100.15 [3]; 100.40 [1]; People v Henderson, 92 NY2d 677, 679 [1999]; People v Alejandro, 70 NY2d 133, 136-137 [1987]). "So long as the factual allegations of an information give an accused notice sufficient 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]).

The instrument alleging the offense of possession of burglar's tools states, in relevant part, that, at 1:15 a.m., a police officer observed defendant examining the interiors of three [*2]parked vehicles with a flashlight and attempting to open each vehicle by pulling on the door handle. Upon confronting defendant, the officer observed that defendant was wearing a belt containing the flashlight and a variety of tools, namely screwdrivers, pliers, and a small knife. It is reasonable to infer from this conduct, at least for pleading purposes (People v Henderson, 92 NY2d at 680), that none of the automobiles belonged to defendant (People v Borrero, 26 NY2d 430, 436 [1970]), and that defendant was "casing" the automobiles to commit a larceny (People v Aviles, 99 AD2d 1025, 1025 [1984]).

Although the tools defendant possessed are normally used for innocuous purposes, and "no presumption of intent may arise from [their] mere possession" (People v Borrero, 26 NY2d at 434), Penal Law § 140.35 provides that "any tool, instrument or other article . . . commonly used for committing or facilitating offenses involving forcible entry into premises, or offenses involving larceny by a physical taking" may be considered a burglar's tool, and "circumstantial evidence can be used to establish the requisite intent" to possess such a tool for larcenous purposes (People v Atson, 139 AD2d 520, 521 [1988]; see e.g. People v Borrero, 26 NY2d at 434; People v Davis, 155 AD2d 611 [1989]; People v Hernandez, 127 AD2d 790, 792 [1987]; People v Briggs, 111 AD2d 340 [1985]). Thus, the facts alleged in the accusatory instrument, if true, suffice to establish that defendant possessed the tools with that intent (see People v Borrero, 26 NY2d at 430; People v Diaz, 23 NY2d 811 [1969]; People v Smith, 23 NY2d 955 [1969]).

In light of our conclusion that the accusatory instrument alleging the offense of possession of burglar's tools is jurisdictionally sufficient, and as defendant has raised no independent ground for disturbing the judgment convicting him of unauthorized use of a vehicle in the third degree, we affirm both judgments of conviction.

Aliotta, J.P., Pesce and Weston, JJ., concur.

Decision Date: July 24, 2014