See People v. Tuozzo, 82 A.D.2d 813, 439 N.Y.S.2d 400 (2nd Dep't 1981); People v. Rice, 65 A.D.2d 132, 410 N.Y.S.2d 619 (1st Dep't 1978); People v. Johnson, 169 Misc.2d 746, 647 N.Y.S.2d 685 (Queens Cty.1996); People v. Carrington, 139 Misc.2d 122, 526 N.Y.S.2d 705 (N.Y.C.1988); People v. Keestanuk, 135 Misc.2d 456, 511 N.Y.S.2d 203 (Dist. Ct. Nassau Cty.1987). But see People v. Graham, 14 Misc.3d 18, 829 N.Y.S.2d 411 (9th & 10th Jud. Dists. 2006) (Penal Law § 165.05(3) applicable to automobile dealer test drive situation). It is true that no published decision authorizes the application of N.Y. Penal Law § 165.05(3) where absent a written agreement, one person retains another person's vehicle in a non-commercial situation.
See People v. Tuozzo, 82 AD2d 813 (2nd Dep't 1981); People v. Rice, 65 AD2d 132 (1st Dep't 1978); People v. Johnson, 169 Misc 2d 746 (Queens Cty. 1996); People v. Carrington, 139 Misc 2d 122 (N.Y.C. 1988); People v. Keestanuk, 135 Misc 2d 456 (Dist. Ct. Nassau Cty. 1987). But see People v. Graham, 14 Misc 3d 18 (9th 10th Jud. Dists. 2006) (Penal Law § 165.05(3) applicable to automobile dealer test drive situation). It is true that no published decision authorizes the application of NY Penal Law § 165.05(3) where absent a written agreement, one person retains another person's vehicle in a non-commercial situation.
The cases cited by the Petitioner do not change this conclusion. See, e.g., United States v. Rodriguez, 587 F.3d 573, 580 (2d Cir. 2009) (analyzing the Hostage Taking Act, which is not at issue); People v. Elliassen, 20 Misc.3d 1143(A), 873 N.Y.S.2d 236 (Sup. Ct., Richmond Cnty. 2008) (arising out of a first-degree unlawful imprisonment charge where the defendants drove a handcuffed victim to an isolated area and then left him there); People v. Graham, 14 Misc.3d 18, 19, 829 N.Y.S.2d 411, 412 (2006) (evaluating a second-degree unlawful imprisonment charge because the defendant test-drove a vehicle but ignored the passenger-salesman's instructions to relinquish control); People v. Brinson, 55 A.D.2d 844, 845, 390 N.Y.S.2d 335, 337 (4th Dep't 1976) (finding that no abduction occurred because the defendant commandeered a car with the victim already inside but released him after "learning that [the victim] could not drive the car" and assist with any robberies).
January 8, 2007. Appeal from the App Term, 2nd Dept: 14 Misc 3d 18 (Orange). Read, J.