People v Gutierrez

[*1] People v Gutierrez 2014 NY Slip Op 51097(U) Decided on June 11, 2014 Criminal Court, Kings County Johnson, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 11, 2014
Criminal Court, Kings County

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.