Opinion
No. 2013–135 K CR.
10-21-2015
The PEOPLE of the State of New York, Respondent, v. Anar GAVRILOV, Appellant.
Opinion
ORDERED that the judgment of conviction is reversed, on the law, defendant's guilty plea is vacated, the count of the accusatory instrument charging defendant with unauthorized use of a vehicle in the third degree is dismissed, the remaining counts of the instrument are reinstated, and the matter is remitted to the Criminal Court for all further proceedings on the remaining counts of the accusatory instrument.
Defendant was charged with petit larceny (Penal Law § 155.25), unauthorized use of a vehicle in the third degree (Penal Law § 165.051 ), and criminal possession of stolen property in the fifth degree (Penal Law § 165.40). The factual portion of the accusatory instrument alleged that, on April 17, 2012, defendant entered Andre Pantaleo's car and took Pantaleo's wallet. On December 5, 2012, defendant pleaded guilty to unauthorized use of a vehicle in the third degree in satisfaction of the entire accusatory instrument. On appeal, defendant contends that the accusatory instrument was jurisdictionally defective as to the count charging unauthorized use of a vehicle in the third degree, to which he pleaded guilty.
At the outset, we note that an argument concerning an accusatory instrument's facial sufficiency is jurisdictional (see People v. Alejandro, 70 N.Y.2d 133 1987 ). Thus, defendant's claim was not forfeited upon his plea of guilty (see People v. Dreyden, 15 NY3d 100, 103 2010; People v. Konieczny, 2 NY3d 569, 573 2004 ) and must be reviewed in spite of his failure to raise it in the Criminal Court (see Alejandro, 70 N.Y.2d 133).
While the accusatory instrument was denominated an information, defendant, through his counsel, expressly waived his right to be prosecuted by information (see People v. Dumay, 23 NY3d 518 2014 ). Under the circumstances, the accusatory instrument's legal sufficiency must be evaluated under the standards which govern the legal sufficiency of a misdemeanor complaint (see Dumay, 23 NY3d at 524). A misdemeanor complaint is sufficient on its face when it alleges facts of an evidentiary character supporting or tending to support the charge (CPL 100.153 ) and provides reasonable cause to believe that the defendant committed the offense charged (CPL 100.404 [b]; see People v. Dumas, 68 N.Y.2d 729, 731 1986 ). “[A]n accusatory instrument must be given a reasonable, not overly technical reading” (Konieczny, 2 NY3d at 576; see also People v. Casey, 95 N.Y.2d 354, 360 2000 ).
Pursuant to Penal Law § 165.05(1), a person is guilty of unauthorized use of a vehicle in the third degree when, “[k]nowing that he does not have the consent of the owner, he takes, operates, exercises control over, rides in or otherwise uses a vehicle.” However, entry alone is not enough under the statute, which expressly requires some degree of control or use (see People v. Franov, 17 NY3d 58, 64 2011 [“(w)hether denominated as exercising control over or otherwise using a vehicle, ... a violation of the statute occurs when a person enters an automobile without permission and takes actions that interfere with or are detrimental to the owner's possession or use of the vehicle”] ). Here, since the accusatory instrument simply alleged that defendant was observed entering Andre Pantaleo's car and taking Pantaleo's wallet from the car, the instrument did not establish that defendant took actions that interfered with or were detrimental to Pantaleo's possession or use of the vehicle (cf. Franov, 17 NY3d 58). As a result, the instrument did not demonstrate that defendant had exercised control over the vehicle, let alone took it, operated it, rode in it, or otherwise used the vehicle. Thus, the factual allegations contained in the accusatory instrument did not sufficiently allege facts of an evidentiary character supporting or tending to support the charge (see CPL 100.153 ) or provide reasonable cause to believe that defendant had committed the offense of unauthorized use of a vehicle in the third degree (see CPL 100.404[b] ), the count to which he pleaded guilty.
However, under the circumstances presented, we decline to dismiss the accusatory instrument in the interest of justice since it cannot be said that no penological purpose would be served by reinstating the proceedings (see People v. Allen, 39 N.Y.2d 916, 917–918 1976 ).
Accordingly, the judgment of conviction is reversed, defendant's guilty plea is vacated, the count of the accusatory instrument charging defendant with unauthorized use of a vehicle in the third degree is dismissed, the remaining counts of the instrument are reinstated, and the matter is remitted to the Criminal Court for all further proceedings on the remaining counts of the accusatory instrument.
PESCE, P.J., WESTON and ELLIOT, JJ., concur.