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New York Penal Law 165.05 & 165.06: Unauthorized Use of a Vehicle & Your NY Criminal Defense

Whether a vehicle is stolen or being driven without permission of the owner, one particular crime that may be charged in New York is Unauthorized Use of a Vehicle in the Second and Third Degrees pursuant to New York Penal Law sections 165.06 and 165.05 respectively. While other crimes may have been perpetrated, such as Grand Larceny in the Fourth Degree, an “E” felony punishable by up to four years in state prison, Unauthorized Used of a Vehicle, the “joyriding statute,” is defined as follows: NY PL 165.05(1) – Unauthorized Use of a Vehicle in the Third Degree

A person is guilty of Unauthorized Use of a Vehicle in the Third Degree when knowing that he does not have the consent of the owner, he takes, operates, exercises control over, rides in or otherwise uses a vehicle. A person who engages in any such conduct without the consent of the owner is presumed to know that he does not have such consent

Unauthorized Use of a Vehicle in the Third Degree is a class “A” misdemeanor punishable by up to one year in jail.

NY PL 165.06 – Unauthorized Use of a Vehicle in the Second Degree

A person is guilty of Unauthorized Use of a Vehicle in the Second Degree when he commits the crime of Unauthorized Use of a Vehicle in the Third Degree as defined in subdivision one of section 165.05 of this article (above) and has been previously convicted of the crime of Unauthorized Use of a Vehicle in the Third Degree as defined in subdivision one of section 165.05 or Second Degree within the preceding ten years.

Unauthorized use of a vehicle in the second degree is a class E felony punishable by up to four years in prison.

Now that you have a basic understanding of the crime(s) of Unauthorized Use of a Vehicle, I will address an interesting issue that recently played out before a New York Supreme Court Criminal Term.
In People v. Pride, indictment number 7885/2009, a Kings County (Brooklyn) Supreme Court Judge addressed the issue of whether the crime of Unauthorized Use of a Vehicle is established where the vehicle in question had not been moved and there was no attempt to operate the vehicle. In Pride, the defendant was alleged to have been observed by the owner in the owner’s vehicle rifling through the car. The car was in the same place where the owner parked it and was not being moved. Additionally, a handle was broken on one of the doors.

The court noted that “recent cases have held that mere entry or presence in a parked vehicle, without evidence of operation of the car or ability to do so, even where there is evidence of theft from the vehicle, is insufficient to establish [U]nauthorized [U]se of a [v]ehicle.” Citing an Appellate Court decision.

Recognizing that “control” of a vehicle was an issue when assessing the sufficiency of the Unauthorized Use offense in the indictment before the court, the judge considered another Appellate Court decision that found that “momentary presence in or about a vandalized automobile cannot, without more, provide the basis for a finding that [defendant] exercised dominion and control over the vehicle….”

In finding that the crime of Unauthorized Use of a Vehicle was not established the court stated:

“The question remains whether the defendant’s entry into another’s car and his brief residence therein constitutes a ‘use’ in the sense of an exercise of dominion and control of the car. In the instant case the defendant did not obtain the means to set the car’s mechanism in operation, nor is there any evidence, such as possession of a tool designed to bypass the car’s ignition system, of an intent to operate the car. The defendant’s presence in the car was transitory and did not, beyond the fact of his unauthorized entry, exclude the proprietor from use or occupancy of the car, even temporarily. The damage to the car and the possession of a common tool which may have been used for a variety of purposes, including forcing the glove compartment or removing the radio, are charged as separate offenses….” People v. Butler, 119 Misc. 2d 1071, 1074 (N.Y. Sup. Ct. 1983).

Obviously, barring the typical “joyride” scenario, if you are accused of Unauthorized Use of a Vehicle consult with a criminal defense lawyer to ascertain whether your “use” and “control” falls into the parameters as addressed above.

The criminal defense lawyers at Crotty Saland PC represent clients throughout the New York City region. Both of our founding criminal defense attorneys served as prosecutors in the Manhattan District Attorney’s Office prior to starting the firm.

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