PEOPLE v. CAIN (1999)

Defendants are charged with Assault in the Third Degree (Penal Law § 120.00) (two counts), Harassment in the Second Degree (P.L. § 240.26), Petit Larceny (P.L. § 155.25) and Criminal Possession of Stolen Property in the Fifth Degree (P.L. § 165.40).   They move for an order dismissing the fourth and fifth counts of the complaint, charging violations of P.L. §§ 155.25 and 165.40.

According to the complaint, defendants stole more than 50 copies of the “New York Blade News” from a sidewalk street box.   Defendants allege that the newspapers are not “property” because they are provided to the public free of charge.

Defendants' argument is predicated on their selective reading of the definition of “property” in P.L. § 155.00(1).   The statute provides:

‘Property’ means any money, personal property, real property, computer data, computer program, thing in action, evidence of debt or contract, or any article, substance or thing of value, including any gas, steam, water or electricity, which is provided for a charge or compensation.  (Emphasis added.)

 Defendants argue that in order for personal property to be “property” as defined in P.L. § 155.00(1), it must be “provided for a charge or compensation.”   The history of the statute negates their contention.

‘Property’ was initially defined in the instant Penal Law to mean ‘any money, personal property, real property, thing in action, evidence of debt or contract, or any article, substance or thing of value’ [Laws 1967, c. 791]․

In 1978, the definition of ‘property’ was amended to make it clear that ‘property’ included ‘any gas, steam, water or electricity, which is provided for a charge or compensation’ [Laws 1978, c. 420].

Donnino, Practice Commentary, McKinney's Cons.Laws of N.Y., Book 39 (1999 ed.), Penal Law Art. 155 at 168.   It is clear from the history of the statute that the amendment adding the language “which is provided for a charge or compensation” modified the new addition to the terms encompassed in the definition of “property,” i.e., gas, steam, water or electricity.   Indeed, to read the statute as defendants do would also require money to be “provided for a charge or compensation” in order to constitute “property,” a patent absurdity.

 Defendants' real, but unarticulated, argument is that they could not have stolen the newspapers because they are provided gratis to the public.   This argument does not address facial sufficiency, but raises a triable issue of fact.

The motion to dismiss is denied.

ELLEN M. COIN, J.