105 Misc. 2d 285 | N.Y. City Crim. Ct. | 1980
OPINION OF THE COURT
The defendant waived, a jury trial on charges of attempted grand larceny (Penal Law, §§ 110, 155.30) and jostling (Penal Law, § 165.25). The prosecution called one witness, Police Officer Groves and then rested its case. The defendant called no witnesses on his behalf and then rested his case.
FINDINGS OF FACT
Police Officer Groves first saw the defendant at approximately 6:20 P.M. on August 2, 1979 in a subway station and issued him a ticket for trespass on the charge of failing to pay his fare. The defendant smelled of alcohol. At about 8:15 P.M. Police Officer Groves who was in uniform on train patrol entered the second car of a Queens bound F train stopped at 42nd Street. There were approximately 20 persons in the car at the time he entered. From a distance of approximately 15 feet he observed the defendant standing over a seated male passenger who was asleep. The defend
CONCLUSIONS OF LAW
The People have failed to sustain their burden of proof as to the existence of any property in the sleeping, passenger’s pocket. Absent such proof the People have failed to prove beyond a reasonable doubt an essential element of attempted grand larceny in the third degree under subdivision 5 of section 155.30 of the Penal Law in that there was no proof of any property in the passenger’s pocket. Therefore the court finds the defendant not guilty of the charge of attempted grand larceny.
With respect to the jostling charge the court finds that the People have met their burden of trial proof. There was no evidence presented to the court, either circumstantial or direct, from which an inference can be drawn that the defendant had the passenger’s permission or consent to place his hand in the passenger’s pocket. The line of questioning on cross-examination covered such areas as whether the police officer knew if the sleeping man was a diabetic; if he knew that the defendant was looking for medicine to help the passenger; whether he noticed if the defendant and the passenger were talking prior to the officer entering the car or whether he knew if the same two were friends. The po
In his motion to dismiss, the defendant also argues that the People’s case must fail as a matter of law since there was no testimony by the alleged victim. However, testimony by the alleged victim is unnecessary to prove the crime of jostling. (People v Burgos, 82 Misc 2d 353.) A conviction for jostling requires only that the defendant’s hand be placed in the proximity of “another’s pocket or handbag” and is thus basically an inchoate theft offense. (See Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 165.25; People v Albo, 139 Misc 852.) In fact, jostling may occur when a victim is pickpocketed without any knowledge whatsoever that the crime has been committed. Very often, an unknowing victim will walk away from the scene, only to find out later that his property has been removed from his person.
The court finds that the People have proved beyond a reasonable doubt every element of the crime of jostling, in that the defendant intentionally and unnecessarily placed his hand in the proximity of the passenger’s pocket. The actual placing of the hand in the pocket, as was the case here, meets the statutory requirement of “in the proximity of a person’s pocket”. (Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 165.25; People v Thomas, 36 NY2d 514.) Defendant’s motion to dismiss after the People’s case which was reserved by the court, is denied.