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May 8, 1980


The opinion of the court was delivered by: WEINFELD

Petitioner, convicted upon a jury verdict in the County Court of Suffolk County, State of New York of attempted grand larceny in the second degree and illegal possession of vehicle identification number plates, each a class E felony, now serving concurrent indeterminate sentences on each count of one and one-half to three years, seeks his release upon a federal writ of habeas corpus. *fn1" He alleges that the judgment of conviction is void for violation of his federal constitutional rights in that: (1) he was denied due process of law based upon the doctrine recently promulgated by the Supreme Court that upon the evidence no rational factfinder could find guilt beyond a reasonable doubt; *fn2" (2) the statute under which he was convicted under Count 2 is constitutionally invalid; and (3) he was deprived of his right to a speedy trial as mandated by the Sixth Amendment of the Constitution. Upon a consideration of the trial record and the contentions of the petitioner and the state, the Court finds that these claims are without substance.

The indictment charged in the first count that in February 1976 the petitioner attempted to steal more than $ 1,500 from Aetna Insurance Company and, in the second count that he knowingly possessed five vehicle identification number plates which had been removed from vehicles to which they were attached originally by the manufacturers pursuant to the New York Vehicle and Traffic Law. *fn3"

 The trial testimony developed that the petitioner was in the auto repair business and from time to time purchased automobiles that were almost total wrecks. The prosecution's theory under the indictment was that petitioner would remove a component part of a wrecked car to which the motor vehicle identification plate was attached (hereafter referred to as "VIN" plate or tag); *fn4" that because he was the legal owner of the wrecked car, the VIN number would be registered to him; that he would then transplant that component part, with the VIN still attached to it, into a "stolen" car; thus if the police ran a routine check on the stolen car via the VIN plate that car would come back registered to petitioner and the "stolen" car would have "disappeared"; that thereupon the owner would be informed so that he would report the car "stolen" to the police and to the insurance company and file a claim for the alleged loss to recover amounts payable under the policy.

 In support of its theory and to sustain the indictment charges, the prosecution offered the testimony of John Licata, the husband of Genevieve, the registered owner of a Lincoln Mark IV, which was insured against theft by the Aetna Insurance Company ("Aetna"). Licata testified that he left the car with petitioner under a prearranged plan whereby the petitioner was to have it "disappear"; that the plan was executed and upon word from the petitioner *fn5" the Licatas reported the car stolen first to the police and then to their agent at the insurance brokerage company. Their agent testified that following advice from Mrs. Licata that the car had been stolen he telephoned Aetna to advise it and also that he filed a written claim for the loss with the company. An Aetna representative testified that such a claim for the loss had been filed on behalf of the assured but that it had not been honored. *fn6"

 A detective attached to the auto theft squad testified that early in February 1976 he had observed the Lincoln car on petitioner's premises and a routine registration check indicated it was registered to Genevieve Licata; that about 11 days thereafter, he saw the same Lincoln but on this occasion it had a license plate which previously he had seen on a Corvette, also on petitioner's premises. A routine computer check of the Lincoln VIN disclosed it had been reported as stolen. Based upon these observations, the police obtained a warrant and searched an apartment occupied by petitioner. The police found the Lincoln car keys in a cup and also five VIN tags still attached to parts of cars (the subject of the second count). Testimony was also offered that the five VIN tags and the parts to which they were attached came from Chevrolet Corvettes.

 The petitioner testified that he specialized in the repair of Chevrolet Corvettes; that in the course of his business he bought and sold automobiles; that the VIN tags found in his apartment belonged to Corvettes that he had purchased as near wrecks; that he had dismantled them for their parts which he then transplanted into other cars at his shop in the course of repair work; and that the five tags found in his apartment during the search, were there for "safekeeping."

 With respect to the Lincoln car, petitioner's version was that Licata called on him early in February 1976 and offered to sell the car to him; that he made an offer to Licata who said he would get back to him; and that on the following day, Licata returned and left the car with petitioner to sell it.

 Petitioner's contention, advanced before the Appellate Division for reversal of the conviction and here in support of the writ of habeas corpus, is that he had no direct dealings with Mrs. Licata, the registered owner of the car but only with her husband; that he did not himself report the car stolen either to the police or to the insurance company; that although the insurance company was notified of the theft no proof of loss requesting payment for the stolen car was ever filed with the insurance company. Based thereon petitioner contends that under New York law there was no "attempt" to steal property from the insurance company that in the absence of such an essential ingredient of the crime charged, he was deprived of due process of law under the rational factfinder concept. *fn7"

 Whether upon the facts there was an "attempt" to commit the crime charged involves an interpretation of the New York State statute and petitioner's claim may well be disposed of in that it presents no issue of federal constitutional dimension, since as stated by the Supreme Court, "(t)he state courts are the ultimate expositors of state law and we are bound by their construction except in extreme circumstances. . . ." *fn8" But even accepting that the instant case presents "extreme circumstances" so that the constitutional issue may properly be considered by this Court, analysis of the state act indicates that the state conformed to the due process requirements in that upon the trial it presented substantial evidence necessary to convince the jury beyond a reasonable doubt of the existence of every essential element of the crime of attempted grand larceny in the second degree. *fn9"

 The New York statute provides: "A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime." *fn10" Under the act the attempt is "an act done with an intent to commit some other crime . . . . First (it must) be established that the defendant acted with a specific intent; that is, that he intended to commit a specific crime . . . . Secondly, it must be proven that the defendant acted to carry out his intent." *fn11"

 The attempt law was enacted by the legislature in 1967 to eliminate the existing rule of the courts that "legal impossibility" was a good defense but "factual impossibility" was no defense to a charge of attempting to commit the crime. The New York State Court of Appeals in interpreting the newly enacted statute noted:

The approach of the draftsmen of the Model Penal Code was to eliminate the defense of impossibility in virtually all situations . . . . (T)he code suggested a fundamental change to shift the locus of analysis to the actor's mental frame of reference and away from undue dependence upon external considerations. The basic premise of the code provision is that what was in the actor's own mind should be the standard for determining his dangerousness to society and, hence, his liability for attempted criminal conduct.
In the belief that neither of the two branches of the traditional impossibility arguments detracts from the offender's moral culpability . . . the Legislature substantially carried the code's treatment of impossibility into the 1967 revision of the Penal Law . . . . Thus, a person is guilty of an attempt when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime . . . . It is no defense that, under the attendant circumstances, the crime was factually or legally impossible of commission, "if such crime could have been committed had the attendant circumstances been as such person believed them to be." *fn12"

 Accordingly, in that case, New York's highest state court held that the defendant may be held for attempted murder though the target of the attempt may have already been dead at the hand of another, when the defendant made his attempt. ...

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