Summary
concluding that duplicate room key stolen from hotel manager could not serve as basis for possession of burglar's tools under statute prohibiting use of tools adapted, designed, or commonly used for facilitating larceny
Summary of this case from State v. HughesOpinion
July 11, 1983
Appeal from the Supreme Court, Erie County, Marshall, J.
Present — Dillon, P.J., Hancock, Jr., Doerr, Boomer and Moule, JJ.
Judgment unanimously modified and, as modified, affirmed, in accordance with the following memorandum: Defendant appeals from his convictions for burglary, third degree, petit larceny, and possession of burglar's tools arising from an incident in which he allegedly stole a television from a private room in a rooming house. He entered the room not by force but by use of a duplicate room key apparently stolen from the building manager. The key was found on his person when he was arrested. With respect to the first two counts, burglary, third degree, and petit larceny, we reject defendant's argument that the evidence, which was circumstantial, did not "exclude `to a moral certainty' every conclusion other than guilt" ( People v Kennedy, 47 N.Y.2d 196, 202, quoting People v Benzinger, 36 N.Y.2d 29, 32, and People v Cleague, 22 N.Y.2d 363, 365-366). With respect to charge three, possession of burglar's tools, we agree with defendant that the key to the room cannot be a burglar's tool. The only issue is whether the key, innocent in itself and used in its normal manner, is a "tool, instrument or other article adapted, designed or commonly used for committing or facilitating offenses * * * involving larceny by a physical taking" (Penal Law, § 140.35). The key is not adapted or designed for criminal purposes and, as used here, cannot be said to be "commonly used for committing or facilitating offenses * * * involving larceny by a physical taking" (cf. Matter of Charlotte K., 102 Misc.2d 848; see, generally, Matter of Parsons, 108 Misc.2d 738, 739-740; People v Alvarez, 86 Misc.2d 654, 656). Thus, the conviction for possession of burglar's tools is reversed and that count dismissed. There is no merit to defendant's claim that his sentence is excessive.