Opinion
March 31, 1998
Appeal from the Family Court, New York County (Richard Ross, J.).
As respondent presentment agency correctly concedes, the evidence was insufficient to establish appellant's commission of acts constituting the crimes of grand larceny in the fourth degree and criminal possession of stolen property in the fifth degree ( Matter of Antonio R., 186 A.D.2d 200, 201). However, we reject the presentment agency's suggestion that, since the evidence would have been sufficient to establish unauthorized use of a vehicle in the third degree (Penal Law § 166.05), we should modify the fact-finding determination accordingly. Although unauthorized use of a vehicle was once considered a lesser included offense of grand larceny or criminal possession of stolen property ( People v. Kirnon, 39 A.D.2d 666, 667, and 31 N.Y.2d 877), such is no longer the case under the "impossibility" test subsequently enunciated by the Court of Appeals in People v. Glover ( 57 N.Y.2d 61, 64). Unauthorized use of a vehicle is not a lesser included offense of larceny and stolen property crimes that do not, in the abstract, rather than under the particular facts, necessarily involve vehicles ( People v. Vicks, 138 A.D.2d 936, lv denied 72 N.Y.2d 1050; People v. Edwards, 104 A.D.2d 448; People v. Harrington, 99 A.D.2d 854).
Concur — Milonas, J. P., Ellerin, Tom, Mazzarelli and Saxe, JJ.