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Penal Law §§ 110.00, 165.05


A Kings Family Lawyer said that, this case grows out of a quarrel over an automobile between the defendant and his estranged former lover. Defendant and his former lover lived together for a time, and they remained on friendly terms even after they took up separate residences. They decided to buy a car. The defendant made the initial down payment for the car of about $6,000. Legal title to the car was placed in the name of the complainant and of her father (who graciously agreed to cosign for the car loan).

For several months defendant and his former lover shared the car amiably and without incident. Then defendant Brown fell behind in making payments on the car, and the quarrel over the car began to develop. Things got so bad that one night, several months before the incident in question, the complainant defendant’s former lover traveled from her home in the Bronx to defendant’s neighborhood in Brooklyn and simply took the car off the street, without any notice to the defendant. Thereafter she kept the car herself.

A Kings Domestic Violence Lawyer said that, on the day in question, October 18, 1998, relations between defendant and his former lover were apparently somewhat friendlier. She drove defendant from Brooklyn to the Bronx. But the Criminal defendant and his former lover began to argue again while standing on the sidewalk in the Bronx. The argument touched upon many sore topics, including the car. After several minutes of quarreling, defendant got into the driver’s seat of the car and prepared to drive away. Complainant jumped into the car’s back seat and continued the argument. Defendant began to drive with his former lover/complainant in the back seat. They proceeded for several blocks. Finally, in a fit of anger, defendant Brown declared “If I can’t have the car, then no one can” and wrecked the car by deliberately driving it into a light pole. Defendant quickly fled the scene, but was ultimately arrested and now stands charged with attempted unauthorized use of a vehicle in the third degree (in violation of Penal Law §§ 110.00, 165.05 [1]) and attempted criminal mischief in the fourth degree (Penal Law §§ 110.00, 145.00 [1]). The car (which was not insured) requires very expensive repairs. Neither the defendant nor complainant has been willing or able to pay for those repairs. Thus complainant’s father a decent, hard-working man whose only mistake was to trust his daughter and her friend Mr. Brown to act responsibly has been saddled with making monthly payments for a wrecked and useless car since September 1998.

Complainant’s and defendant’s positions can be restated (in somewhat more formal legal language than they themselves employed) as follows. Complainant took the view that defendant made the initial down payment (and several subsequent monthly payments) on the car as a gift to her, and that she was the sole owner of the car. In the complainant’s view, complainant consented of her own free will to permit the defendant to occasionally use the car for several months following the purchase of the car, but she then withdrew that consent after they quarreled about several issues, including defendant’s failure to keep up payments on the car. Once complainant withdrew that consent, she believed that defendant had no right to take, use or damage the car.

A Kings Criminal Lawyer said that, defendant Brown, for his part, took the view that he made the very substantial initial down payment (and several subsequent monthly payments) on the car not as an outright gift to Ms. Lindo, but as an act pursuant to an informal agreement with complainant Lindo whereby they would share the use of the car. Defendant’s understanding was that he and Ms. Lindo had agreed that Ms. Lindo (along with her father) would be the legal titleholders to the car, but that defendant retained the right to use the car from time to time and that Ms. Lindo was therefore required to share the car with him. In defendant’s view the complainant had no right to unilaterally declare that defendant—who had paid for the car in the first place—could no longer use the car at all. Thus, at least in his own mind, defendant was not stealing Ms. Lindo’s car on the day in question; rather defendant believed that he was entitled to drive the car from time to time, and that Ms. Lindo was obligated to share it.

The issues in this case are whether the defendant in a prosecution for unauthorized use of a vehicle, like the defendant in a traditional larceny prosecution, entitled to assert as a defense that he acted under a good-faith claim of right; and whether a defendant properly be charged with the crime of criminal mischief for deliberately destroying property where defendant genuinely believed in good faith that he was entitled to share the use of that car with the car’s legal owner

For the reasons detailed below, the court answers both these questions in the affirmative and therefore finds the defendant not guilty of attempted unauthorized use of a vehicle, but guilty of attempted criminal mischief. An analysis of the criminal mischief charge and the facts of this case also leads the court to conclude that there is good reason to re-examine the rule of the 1997 case decision which places severe, and in this court’s view, unwarranted restrictions on prosecutions for criminal mischief in cases involving domestic violence.

At the outset, it should be noted that based on the evidence presented at trial it certainly appears that defendant was guilty of a number of charges that were not brought by the People, including: (1) reckless endangerment (Penal Law § 120.20) (for deliberately causing a car wreck while he and complainant were still in the car); (2) leaving the scene of an incident (Vehicle and Traffic Law § 600); (3) driving with a suspended license (Vehicle and Traffic Law § 511); and (4) criminal mischief in the fourth degree (Penal Law § 145.00) (for damaging the light pole, which belongs to the City). The District Attorney’s office has, however, elected to focus solely on two property crimes allegedly committed against the complainant, , unauthorized use and criminal mischief.

In a case like this, where there was a genuine dispute over the property in question, the prosecution of those property crimes raises the concern that an essentially civil dispute over the ownership and use of a car should not be elevated into a criminal prosecution. As detailed below, the law is not fully settled on the question whether a person claiming to be an equitable co-owner of property can be charged with either unauthorized use or criminal mischief. The law is a bit clearer with respect to the closely related crime of grand larceny. An examination of the law regarding larceny is therefore a useful starting point for analysis here.

For essentially the same reasons the court finds that defendant is not guilty of the charge of attempted unauthorized use of a vehicle that was brought by the People.

The unauthorized use statute (Penal Law § 165.05) is in essence a kind of larceny statute specially adapted for car theft. The unauthorized use statute applies where a defendant takes a car for a “joyride” that is, where the defendant takes or uses a car, however briefly, knowing that he does not have the consent of the car’s owner. Unauthorized use differs from classical larceny chiefly in that the crime of unauthorized use can be committed even where defendant does not intend to permanently deprive the owner of the car; it is sufficient that defendant use the car for only a short period.

Unauthorized use differs from larceny, then, in terms of the duration of the taking. But the unauthorized use statute aims at essentially the same wrong as the larceny statute namely, the knowingly wrongful misappropriation of someone else’s property or, in plainer English, stealing. It has long been recognized that the assertion that defendant acted under a good-faith claim of right is a defense to a charge of petit larceny. There appears to be no published New York case where the defense of claim of right has been asserted or applied where the crime charged is unauthorized use of a vehicle. Nevertheless, as a matter of logic and fairness, claim of right should be available as a defense to unauthorized use. A defendant who takes or uses a car under a good-faith claim of right lacks the evil intent ordinarily required for any crime. And, to track the language of the unauthorized use statute, such a defendant does not “know” that he lacks the owner’s consent to use the car; rather the defendant in such a case believes that he is entitled to use the car, either because he himself owns an interest in the car, or because he has otherwise been given permission to use the car. Thus, this court finds that a good-faith claim of right is a defense to the charge of unauthorized use of a vehicle.

Accordingly, he is not guilty of attempted unauthorized use of a vehicle. Any other verdict would elevate to the level of a crime what was in truth a petty civil dispute between the parents over the precise terms of their vague and informal agreement to share the use of the car.

Although the issue is a close one, the court reaches a different verdict with respect to the charge of criminal mischief.

Penal Law § 145.00 (1) provides in relevant part that a person is guilty of criminal mischief in the fourth degree when “having neither right to do so nor any reasonable ground to believe that he has such a right, he intentionally damages property of another person.”

Criminal mischief typically involves acts of vandalism committed by a defendant against property that is wholly owned either by strangers or by the defendant’s enemies. Thus, in the typical case, the statutory requirement that the property must belong to “another person” presents no difficulty.

More complicated issues arise when the property at issue might be regarded as jointly owned by the defendant and the complainant. As a strictly literal matter, it would appear that property jointly owned by a defendant and a complainant qualifies as property of “another person” within the meaning of the criminal mischief statute. That is so because property is that of another person “`if anyone, other than the defendant, has a possessory or proprietary interest in such tangible property'”.

This court does recognize that it is nevertheless bound by the decision in Person (supra) unless and until it is overruled by the Court of Appeals or until the Appellate Division, First Department, expresses a different view. But defendant Brown’s case is, fortunately, clearly distinguishable from Person for at least two important reasons. First, defendant and complainant have never been married and so defendant cannot claim a spouse’s equitable interest in marital property. Second, unlike most items of personal property, it is fairly easy to determine who owns a car because a car has a formal legal title. Legal title to the car in this case belonged to the complainant and her father, and defendant knew it. Defendant was not an owner or co-owner of the car; at best, he had an agreement with her to share the use of the car. Thus there is no doubt that the car in this case was the property of “another person” within the meaning of the criminal mischief statute. Moreover, defendant had no right to destroy the car nor any reason to believe he had such a right; that is so because no one contends that she ever agreed, either expressly or by implication, that defendant could wreck the car.

To put matters more plainly, defendant may reasonably have believed that he had a right to use the car. Thus he is not guilty of attempted unauthorized use. But defendant did not believe and could not reasonably have believed he had a right to destroy the car. He destroyed the car because he was angry at the complainant for denying him the use of the car. That is “criminal mischief” in both the ordinary and legal sense of that phrase. Accordingly, defendant is found guilty of attempted criminal mischief.

Domestic violence is a serious crime, if you are facing such charges; seek the assistance of a Kings Criminal Attorney and Kings Order of Protection Attorney.

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