People v. Brown

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. The testimony of the complainant Ms. Lindo—the People's chief witness at trial—demonstrated that there was and is a genuine dispute between the complainant and defendant Brown about who owned the car and who was entitled to use it. Complainant's and defendant's positions can be restated (in somewhat more formal legal language than they themselves employed) as follows. Complainant Lindo 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 Lindo withdrew that consent, she believed that defendant had no right to take, use or damage the car. 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.

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 Ms. Lindo, namely, 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. (See, People v Zinke, 76 NY2d 8, 13 [1990].) 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 larceny. An examination of the law regarding larceny is therefore a useful starting point for analysis here.

The general rule in New York (and elsewhere) is that a joint or common owner of property cannot be guilty of larceny for taking commonly held property. He may be liable for civil damages for conversion or the like, but he is not criminally liable. (People v Zinke, supra .) This long-standing common-law rule^[1] is built into the definitional section of article 155 of the Penal Law, which governs larceny. Larceny is defined as wrongfully taking property from an "owner" (Penal Law § 155.05), and an "owner" is defined as anyone with right of possession superior to that of the taker (Penal Law § 155.00 [5]). Penal Law § 155.00 (5) further provides, however, that a joint or common owner shall not be deemed to have a right of possession superior to that of any other common owner. Thus where one co-owner takes property from another co-owner, neither person is an "owner" for purposes of the larceny statute and, accordingly, neither one can be charged with larceny. (See, People v Kheyfets, 174 Misc 2d 516, 519 [Sup Ct, Kings County 1997] ["Thus, if property owned by two or more people is taken by one owner, he or she cannot be convicted of larceny. The principle behind this rule is that if one is an owner of property and entitled to possession at the time of the taking, there can be no larceny"].) Moreover, even where a defendant is not in fact a co-owner of property, but takes the property under a claim of right made in good faith, defendant is not guilty of larceny. That is so because in such a case defendant lacks the intent to steal. (See, People v Reid, 69 NY2d 469 [1987]; People v Chesler, 50 NY2d 203 [1980]; Penal Law § 155.15 [1].) Thus, under the facts of the present case, defendant Brown could not be convicted of larceny. To begin with, defendant acted under a good-faith claim of right in that, even according to the complainant, defendant Brown genuinely believed he had a right to use the car. That belief had a reasonable, good-faith basis in that defendant had paid for the car in the first instance and had driven it for many months with the complainant's consent. Thus defendant's intention was not to steal, but merely to use a car that he believed, with at least colorable justification, he had every right to use. The same result might also be justified by reference to the Penal Law's definition of "owner." That is to say, if defendant had been charged with larceny then he might well have argued that he regarded himself as, in essence, an equitable co-owner of the car along with Ms. Lindo. Under this theory, defendant would have asserted that he could not and did not consciously intend to deprive the "owner" of the car because defendant sincerely and reasonably believed that he and Ms. Lindo were co-owners of the car; defendant would then argue that as a consequence neither was an "owner" of the car within the specialized definition of "owner" set out in Penal Law § 155.00 (5) because that definition provides that neither co-owner can have a right of possession "superior" to the other's. Accordingly, had the People chosen to bring a charge of larceny against defendant Brown, the verdict would have been not guilty.

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. use the car on the day in question. 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 Mr. Brown and Ms. Lindo 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 no right to do so nor any reasonable ground to believe that he has such a right, he * * * [i]ntentionally damages property of another person." (Emphasis added.) 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'" (Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law § 145.00, at 104, citing Denzer and McQuillan, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law art 145, at 376 [1967]). However, the Appellate Division, Second Department, has relatively recently held that a husband cannot be convicted of either larceny or criminal mischief for stealing or destroying marital property on the theory that a husband has an equitable interest in such property pursuant to the Domestic Relations Law. (People v Person, 239 AD2d 612 [2d Dept 1997], supra.) Person (supra) can be read either broadly or narrowly. Read narrowly, Person stands for the limited proposition that one spouse cannot be guilty of criminal mischief for the destruction of jointly held marital property. Read broadly, Person appears to stand for the far more general proposition that, like the 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. (People v Shakur, 215 AD2d 184 [1st Dept 1995].) But defendant Brown's case is, fortunately, clearly distinguishable from Person for at least two important reasons. First, defendant Brown 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 Ms. Lindo 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 Ms. Lindo 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 Ms. Lindo 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 Ms. Lindo 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. [1] See, Hale, History of Pleas of the Crown, at 513 (1683) ("Regularly a man cannot commit felony of the goods, wherein he hath a property," quoted in People v Zinke, 76 NY2d, supra, at 11). [2] In this respect, the criminal mischief statute is similar to the arson statute. The relevant sections of the arson statute provide that it is an affirmative defense to arson that the building is wholly owned by the defendant (Penal Law §§ 150.05, 150.10) (unless the defendant knows there are people inside the building, see, Penal Law §§ 150.15, 150.20). Thus, a co-owner who destroys shared property by arson is guilty of a crime, notwithstanding the fact that he owns an interest in the property destroyed. [3] The court recognizes that there are, of course, cases involving domestic disputes and minimal property damage where it might not be appropriate to pursue criminal mischief charges even though such charges are made out under the literal language of the statute. For example, it would likely not be worthwhile to pursue criminal mischief charges each time a housewife broke a plate or a husband punched a door in frustration during a domestic argument. However, as in many similar matters, the legal system must rely on the wisdom and good judgment of police, prosecutors, defense lawyers, Judges and juries to see to it that such trivial misconduct will not result in a criminal conviction.