In re Jose C.
Matter of Jose C.
2008
NY Slip Op 05014
Decided
on June 5, 2008
Appellate
Division, First Department
Published
by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This
opinion is uncorrected and subject to revision before publication in the
Official Reports.
Decided
on June 5, 2008
Saxe,
J.P., Nardelli, Catterson,
McGuire, JJ.
3842
[*1]In
re Jose C., A Person Alleged to be a Juvenile Delinquent, Appellant.
Presentment
Agency
George E. Reed, Jr.,
Michael
A. Cardozo, Corporation Counsel,
of counsel), presentment agency.
Order
of disposition, Family Court, Bronx County (Juan M. Merchan, J.), entered on or
about June 11, 2007, which adjudicated appellant a juvenile delinquent, upon a
fact-finding determination that he had committed acts which, if committed by an
adult, would constitute the crimes of unauthorized use of a vehicle in the
third degree, petit larceny, criminal possession of stolen property in the
fifth degree, criminal mischief in the fourth degree and possession of
burglar's tools, and placed him with the Office of Children and Family Services
for a period of 12 months, unanimously modified, on the law, to the extent of
vacating the findings as to unauthorized use of a vehicle, larceny and
possession of stolen property and dismissing those counts of the petition, and
otherwise affirmed, without costs.
The
evidence established that appellant and a companion were standing behind a car
with an open trunk in the early morning hours, and closed the trunk as a police
officer drove up. The officer observed that the door lock and window had been broken, and that an ashtray full of change apparently had
been removed from the car and deposited in a different car. The evidence also
established that appellant and his companion possessed screwdrivers.
As
the Presentment Agency concedes, since the vandalized car was not stolen, but
was still at the location where the owner's brother had parked it, the evidence
does not support the findings as to petit larceny and criminal possession of
stolen property, which both related to the car. The evidence also was
insufficient to establish unauthorized use of a vehicle in violation of Penal
Law § 165.05(1). That crime requires "an exercise of dominion and control
over the car, either mechanically or physically, to the exclusion of the
owner's proprietary interest, even transitorily" (People v Gray, 154 AD2d
547, 547 [1989]). There was no evidence that appellant or his companion ever
attempted to start the car, or had the means to do so. Neither appellant's
presence near a vandalized car, nor the inference that he or his companion must
have entered the car at some point to steal the ashtray and coins, established
the requisite exercise of dominion and control (id.; see also Matter of Javier
F., 3 AD3d 493 [2004]; Matter of Archangel O., 157 AD2d 729 [1990]; Matter of
Ruben P., 151 AD2d 485 [1989]). However, the court's findings as to the
remaining charges were based on legally sufficient evidence and were not
against the weight of the evidence, as the evidence supported the inference
that appellant committed criminal mischief by damaging the car and possessed a
screwdriver that he used as a burglar's [*2]tool. Furthermore, the petition, as
supplemented by the supporting deposition, was legally sufficient with respect
to the criminal mischief and burglar's tools charges.
Appellant's
remaining contentions are unpreserved and we decline to review them in the
interest of justice. As an alternative holding, we also reject them on the
merits.
THIS
CONSTITUTES THE DECISION AND ORDER
OF
THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED:
JUNE 5, 2008
CLERK