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People v. Roby

39 N.Y.2d 69 Court N.Y. Decision date 1976-03-25 English

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p. 69
The People of the State of New York, Respondent, v Vernon Roby, Appellant.
Argued February 18, 1976;
decided March 25, 1976
Richard A. Greenberg and William E. Hellerstein for appellant.
I. The 30 seconds appellant sat on the front passenger seat of a parked stolen car, without a key in the ignition and without the motor running, while another person sitting in the driver’s seat at the same time did possess the key, was insufficient to constitute an unauthorized use of that vehicle within the meaning of the statute. (Matter of Diane S., 18 NY2d 973 ; People v McCaleb, 25 NY2d 394 ; People v Colon, 28
p. 70
NY2d 1 ; People v Moro, 23 NY2d 496 ; People v Galbo, 218 NY 283 ; People v Alamo, 34 NY2d 453 ; People v Kirnon, 39 AD2d 666 , 31 NY2d 877 ; People v La Belle, 18 NY2d 405 ; People v Chapman, 224 NY 463 .) II. Defense counsel’s motion for a mistrial based on his assertion that the court, during voir dire, told the jurors that defendants "must have done something wrong because people just don’t come in off the street,” entitles appellant to a new trial or, alternatively, an evidentiary hearing before a different Judge or referee. (People v Leavitt, 301 NY 113 ; People v Creasy, 236 NY 205 ; People v Mendes, 3 NY2d 120 ; People v Amoroso, 38 AD2d 563 ; People v Kohn, 251 NY 375 ; People v Boulware, 29 NY2d 135 .)
Eugene Gold, District Attorney (Raymond J. Scanlan of counsel), for respondent.
I. The trial court did not commit reversible error when, upon receipt of the verdict of the jury convicting defendant, Donald Daughtry, of both criminal possession of stolen property in the third degree and petit larceny, it directed a verdict of acquittal with respect to the petit larceny charge. (People v Flowers, 44 AD2d 842 ; People v Richlia, 41 AD2d 955 ; People v Carrero, 42 AD2d 575 ; People v Ortiz, 42 AD2d 931 ; People v Cart, 43 AD2d 827 ; Matter of Linda T., 44 AD2d 524 .) II. Defendants’ guilt was established beyond a reasonable doubt. (People v McCaleb, 25 NY2d 394 ; People v Alamo, 34 NY2d 453 ; People v Eisenberg, 22 NY2d 99 ; People v Leonti, 18 NY2d 384 ; Matter of Diane S., 18 NY2d 973 ; People v Corapi, 42 Misc 2d 247 ; People v Mobley, 33 AD2d 888 ; People v Burton, 20 NY2d 674 ; People v Leyra, 1 NY2d 199 ; People v Ruberto, 10 NY2d 428 .) III. No prejudicial errors were committed upon trial. (People v Kingston, 8 NY2d 384 ; People v Crimmins, 36 NY2d 230 ; Opper v United States, 348 US 84 ; People v Barnes, 202 NY 77 ; People v Kohn, 251 NY 375 ; People v Robinson, 36 NY2d 224 ; People v Burton, 20 NY2d 674 ; Weisman v United States, 1 F2d 696 ; People v Handford, 40 AD2d 529 .) IV. The representation accorded defendants by their trial counsel was adequate; the record demonstrates a complete absence of any conflict of interest. (People v LaMere, 39 AD2d 15 ; People v Gonzalez, 30 NY2d 28 .)

Memorandum. The order of the Appellate Term should be affirmed.

In People v McCaleb ( 25 NY2d 394 ) we held that the statute proscribing unauthorized use of a vehicle (Penal Law, § 165.05,

p. 71
subd 1) makes criminal the unauthorized occupation of another person’s vehicle, without his consent, irrespective of whether or not the vehicle is in motion.[1] In the two companion cases considered there, we affirmed the convictions of two defendants, each of whom was found in a parked car which had been reported stolen; and when apprehended, one defendant was found seated in the rear of an automobile but with an operable ignition key; and the other was found asleep in the front seat of a car with the motor running.

Defendant asserts that McCaleb is distinguishable from this case on the grounds that: (1) he was seated in the automobile for but a short time; (2) the motor was not running nor was there a key in the ignition; and, finally, (3) both cars in McCaleb were recently stolen, thus giving rise to the inference, unstated in the opinion, that both defendants were involved in the thefts and only convicted of unauthorized use. We cannot agree. There is no minimum time limit for unauthorized occupation and, under the circumstances which obtained here, the jury was warranted in concluding that defendant’s occupation of the front passenger seat in a vehicle, unquestionably stolen, constituted the unauthorized use of that vehicle under the statute. While it is true that neither the motor was running nor was a key in the ignition, the evidence here parallels that in McCaleb in that it was shown at trial that defendant’s codefendant and companion were seated behind the steering wheel of the stolen vehicle and were attempting to insert the key into the ignition when the arresting officer approached and identified himself. Finally, the crime of unauthorized use is not so interrelated with that of larceny, either esoterically or definitionally, as to require any evidence of theft and, thus, no matter how aged the theft of the automobile, that fact is absolutely immaterial to the quantum of proof necessary to establish commission of the crime of unauthorized use of a vehicle.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur in a memorandum.

Order affirmed.

* Subdivision 1 of section 165.05 provides that: "A person is guilty of unauthorized use of a vehicle when: 1. 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”.

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