PEOPLE v. GRAHAM

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Supreme Court, Appellate Term, New York.

The PEOPLE of the State of New York, Respondent, v. Jermaine GRAHAM, Appellant.

Decided: November 24, 2006

Present:  RUDOLPH, P.J., ANGIOLILLO and TANENBAUM, JJ. Gary E. Eisenberg, New City, for appellant. Francis D. Phillips II, District Attorney, Goshen (Daniel M. Reback of counsel), for respondent.

Appeal from a judgment of the Justice Court, of the Town of Goshen, Orange County (Thomas J. Cione, J.), rendered April 21, 2004. The judgment convicted defendant, upon a jury verdict, of unlawful imprisonment in the second degree and unauthorized use of a vehicle in the third degree.

Judgment of conviction affirmed.

 The accusatory instrument, which charged defendant with unlawful imprisonment in the second degree (Penal Law § 135.05) and unauthorized use of a vehicle in the third degree (Penal Law § 165.05[3] ) alleged, inter alia, that defendant entered an automobile dealership and asked to test-drive a vehicle.   While test-driving the vehicle, defendant ignored the passenger salesman's instruction as to the route of the test drive and traveled an additional, substantial distance on Route 17, rejecting the salesman's demands that he either return to the dealership or relinquish control of the vehicle.   The accusatory instrument also alleged that the salesman attempted unsuccessfully to wrest control of the vehicle from defendant and that defendant yielded possession only after the salesman exited the vehicle when it was “in traffic.”

 On appeal, defendant contends that whereas the facts alleged in the accusatory instrument may have supported a charge under Penal Law § 165.05(1), which sanctions even a transitory and minimal unauthorized use of an automobile (People v. Roby, 39 N.Y.2d 69, 71, 382 N.Y.S.2d 739, 346 N.E.2d 540 [1976];  People v. McCaleb, 25 N.Y.2d 394, 397, 306 N.Y.S.2d 889, 255 N.E.2d 136 [1969];  People v. Gray, 154 A.D.2d 547, 547, 546 N.Y.S.2d 387 [1989] ), absent a written agreement regarding the terms of the nature and duration of defendant's use of the vehicle, a charge under Penal Law § 165.05(3) does not lie.   We do not agree with defendant's contention that subsection three is limited to prosecutions for violations of written agreements.   The statute contains no such limiting language.   It merely requires that the People allege and prove a “gross deviation” from the manner and duration of use specified in any agreement, without regard to whether the agreement is oral or written.   The illustration of “gross deviation” set forth therein serves merely to establish the magnitude of the deviation required to establish the offense in the event the accused takes possession of the vehicle pursuant to a written agreement, and by its terms does not limit prosecutions under subsection 3 to such agreements.   Construing the accusatory instrument, as we must, according to the criteria of People v. Casey, 95 N.Y.2d 354, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000], we find that it sufficed to allege the conditions under which defendant was permitted to use the vehicle and that his use grossly deviated therefrom.

Finally we perceive no abuse of discretion with respect to the trial court's Sandoval ruling (People v. Hayes, 97 N.Y.2d 203, 207, 738 N.Y.S.2d 663, 764 N.E.2d 963 [2002];  People v. Caldwell, 23 A.D.3d 576, 806 N.Y.S.2d 639 [2005];  People v. Green, 67 A.D.2d 756, 412 N.Y.S.2d 447 [1979];  People v. Godin, 50 A.D.2d 839, 377 N.Y.S.2d 427 [1975] ), and conclude that the trial proof was legally sufficient to support the verdicts (People v. Contes, 60 N.Y.2d 620, 467 N.Y.S.2d 349, 454 N.E.2d 932 [1983];  see People v. Gonzalez, 80 N.Y.2d 146, 150, 589 N.Y.S.2d 833, 603 N.E.2d 938 [1992];  People v. Boyd, 122 A.D.2d 273, 275, 505 N.Y.S.2d 185 [1986] ), and that the verdicts were not against the weight of the evidence (CPL 470.15 [5] ).