Depending how aggressive or creative a District Attorney gets, sometimes what is one simple act becomes multiple criminal charges from the onset of an arrest or at some point during the prosecution. While the law allows an Assistant District Attorney in New York to supersede an information (criminal complaint) or present criminal charges to a Grand Jury that were not initially on a felony complaint, when such actions are taken a criminal defense lawyer must be on his or her respective “game.” Why? Some charges may be obvious on their faces but others not so much. Complicating matters, what may seem like a simply case with limited exposure can ultimately involve a crime with potentially significant consequences. People v. Gavrilov, 2015 Slip Op. 51562 (App. Term 2nd Dept. 2015) is such a case where the conduct and the charged crimes did not exactly coalesce. There, the defendant entered a vehicle and stole some property. Charged with Petit Larceny, New York Penal Law 155.25, and Fifth Degree Criminal Possession of Stolen Property, New York Penal Law 165.40, the defendant also found himself facing Third Degree Unauthorized Use of a Vehicle, New York Penal Law 165.05. Although not a more serious offense, a very interesting question was raised. Did prosecutors overreach by charging the defendant with PL 165.05 or does wrongfully entering and stealing from a vehicle also violate the Unauthorized Use of a Motor Vehicle statute?
Looking solely at the language of PL 165.05, you are guilty of Unlawful Use of a Vehicle in the Third Degree when you know you do not have the consent of the vehicle’s owner you “takes, operate, exercise control over, ride in or otherwise use a vehicle.” Seems fairly uncontroversial, right? As noted, in Gavrilov, the defendant entered and took property belonging to the car’s owner. Gavrilov did not go for a joy ride and spin a la Ferris Bueller’s Day Off (great movie if you’ve never seen it). Nor did the defendant strip down the car to its bare bones. Simply, in non legal terms, he took some stuff that was not his to take.
Charged with PL 155.25, PL 165.40 and PL 165.05, the defendant challenged whether his conduct violated the Unauthorized Use of a Vehicle statute. Citing People. v. Franov, 17 NY3d 58, 64 (2011), “(w)hether denominated as exercising control over or otherwise using a vehicle, . . . 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.” Here, however, the defendant did not use, take, drive, operate or do anything with the vehicle other than enter it to steal property contained inside the automobile. More specifically, taking a wallet of another person from that person’s vehicle without more does not establish that the defendant exercised control over or interfered with the owner’s use of the vehicle.
While the defendant ultimately succeeded and securing a dismissal of the Third Degree Unauthorized Use of a Vehicle crime, stealing a wallet, whether from a home, restaurant table, pocket of a person or elsewhere is a crime. These crimes may vary in severity depending on the manner in which the accused stole property, but no matter what he or she did there is some form of a larceny. In Gavrilov these crimes were both PL 155.25 and PL 165.40 due to the property being valued less than $1,000, not being taken from the person of another and not being of the type that is an automative felony.
Remember, whether you are issued a Desk Appearance Ticket with one “top offense charged” or you are charged with a felony complaint, prosecutors have the ability to alter, change, remove or add additional criminal charges. It is incumbent upon you, more precisely your criminal defense attorney, to ascertain whether or not the offense or offenses are legally sufficient. In the event they are not, a motion to dismiss may be one of the first defense tactics you pursue to resolve your criminal case. If you are charged with PL 165.05, failure by the prosecution to set forth your control, use of and interference with the vehicle, Gravrilov may be a critical piece of your defense.
To read more about theft related crimes in New York including Petit Larceny, Criminal Possession of Stolen Property and Unauthorized Use of a Vehicle, review this blog and the NewYorkCriminalLawyerBlog.Com as well as the sites listed below.
Representing clients in all theft related crimes throughout the New York City area, the founding NYC criminal defense attorneys at Saland Law PC served as prosecutors in the Manhattan District Attorney’s Office prior to starting the criminal defense law practice.