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PEOPLE STATE NEW YORK v. LEOTIS MCCALEB (11/26/69)

COURT OF APPEALS OF NEW YORK 1969.NY.43632 <http://www.versuslaw.com>; 255 N.E.2d 136; 25 N.Y.2d 394 decided: November 26, 1969. THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,v.LEOTIS MCCALEB, RESPONDENT; THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT, V. GARY GILLS, ALSO KNOWN AS GARY GIBBS, RESPONDENT Appeals, by permission of Associate Judges of the Court of Appeals, from orders of the Appellate Term of the Supreme Court for the Second and Eleventh Judicial Districts in the Second Judicial Department, entered May 14, 1969 and March 21, 1969, which (1) reversed, on the law and the facts, judgments of the Criminal Court of the City of New York, rendered respectively in (a) the County of Kings (Edward D. Calazzo, P. J., Herbert I. Sorin and John F. Furey, JJ.) and (b) the County of Queens (Irving I. Schreckinger, P. J., Aaron F. Goldstein and William S. Shea, JJ., at time of trial; Howard Rossbach, P. J., William Kapelman and Alfred Callahan, JJ., at time of sentence), convicting defendants of violations of section 165.05 of the Penal Law (unauthorized use of a vehicle), and (2) dismissed the complaints. Counsel Eugene Gold, District Attorney of Kings County (Raymond J. Scanlan and Harry Brodbar of counsel), for appellant in first above-entitled case. Thomas J. Mackell, District Attorney of Queens County (Cornelius J. O'Brien of counsel), for appellant in second above-entitled case. Judges Burke, Scileppi, Bergan, Jasen and Gibson concur with Judge Breitel; Chief Judge Fuld concurs in result only. Author: Breitel


Appeals, by permission of Associate Judges of the Court of Appeals, from orders of the Appellate Term of the Supreme Court for the Second and Eleventh Judicial Districts in the Second Judicial Department, entered May 14, 1969 and March 21, 1969, which (1) reversed, on the law and the facts, judgments of the Criminal Court of the City of New York, rendered respectively in (a) the County of Kings (Edward D. Calazzo, P. J., Herbert I. Sorin and John F. Furey, JJ.) and (b) the County of Queens (Irving I. Schreckinger, P. J., Aaron F. Goldstein and William S. Shea, JJ., at time of trial; Howard Rossbach, P. J., William Kapelman and Alfred Callahan, JJ., at time of sentence), convicting defendants of violations of section 165.05 of the Penal Law (unauthorized use of a vehicle), and (2) dismissed the complaints.

Judges Burke, Scileppi, Bergan, Jasen and Gibson concur with Judge Breitel; Chief Judge Fuld concurs in result only.

Author: Breitel

 The People appeal in two cases involving the class A misdemeanor of unauthorized use of a vehicle (Penal Law, § 165.05, subd. 1).

The issues are: whether the statute makes criminal the occupation, without any locomotive use, of another's motor vehicle without his consent; and whether the statutory presumption of knowledge of the owner's non-consent is constitutionally valid.

Defendant Gary Gibbs*fn1 was convicted after trial before a three-Judge Bench of the Criminal Court of the City of New York and sentenced to an indefinite reformatory term. The Appellate Term reversed the conviction "on the law and facts" and dismissed the complaint, one Judge dissenting. Defendant Leotis McCaleb was convicted after trial before a three-Judge Bench of the Criminal Court of the City of New York, one Judge dissenting, and sentenced to three months' imprisonment. The Appellate Term reversed the conviction "on the law and facts" and dismissed the complaint, one Judge dissenting for the reasons stated in People v. Gibbs.

Defendants were each found in different parked automobiles which had been taken and moved without the permission of their owners. When apprehended, McCaleb was seated in the rear of an automobile, its engine turned off, but a working key in the ignition. Gibbs was found sleeping in the front passenger seat of a vehicle whose motor was running. Both automobiles had been reported as stolen within nine hours of the arrests.

The People contend that the conduct of each defendant constituted an unauthorized use of a vehicle. They also urge as valid and consistent with due process the statutory presumption that one who uses a vehicle without the consent of the owner knows he does not have such consent.

The convictions were not properly reversed on the law and there should be new trials.

Section 165.05 of the Penal Law provides, in pertinent part:

"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 * * * Unauthorized use of a vehicle is a class A misdemeanor."

Defendants argue that the quoted section should be narrowly construed; that its specification of prohibited conduct refers only to vehicles in motion and that, similarly, the phrase "otherwise uses" should be confined to conduct involving moving vehicles. It is emphasized, in support of this view, that the section is derived from section 1293-a of the old Penal Law, which was intended to punish only "joy riding," and that, also, the present section is found in article 165 of the new Penal Law, devoted to and headed "Other Offenses Relating to Theft." It is suggested that, since no theft with the element of asportation is involved, defendants' conduct is more akin to criminal trespass in the third degree (Penal Law, § 140.05)*fn2 or loitering (Penal Law, § 240.35, subd. 8), both of which are violations, rather than class A misdemeanors.

Notably, the comments of the staff of the State Commission on Revision of the Penal Law and Criminal Code, are limited to the problems of "joy riding" and indicate the design of the drafters to include those riding in a vehicle who know they do not have permission of the owner, although they may not have taken part in the initial taking (see Commission Staff Notes on the Proposed New York Penal Law, § 170.10, Gilbert Criminal Code and Penal Law [1968], pp. 1C-74-1C-75).

The Appellate Term, in reversing, presumably considered the statute narrow in scope, and the analysis in Matter of Diane S. (18 N.Y.2d 973 [decided ...


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