665 NYS2d 802 | N.Y. Sup. Ct. | 1997
OPINION OF THE COURT
The defendant, Vyacheslav Kheyfets, is charged in a 15-count indictment with the crimes of criminal contempt in the first degree (3 counts), criminal contempt in the second degree
The charges against the defendant arose out of two incidents. On January 14, 1997, the defendant, who had been drinking, allegedly started a fight with the complainant in their home between midnight and 1 o’clock. According to the complainant, the defendant called her names and attempted to get her to come to bed. When she refused, he hit and kicked her in the stomach and ripped off her blouse. The complainant yelled for help and the defendant turned up the volume of the television. The defendant then allegedly ripped the phone out of the socket, breaking it, because the complainant wanted to call the police. She continued to yell for help while the defendant kicked her arms and hit her breast, nose and lips, causing her nose to swell and her lips to bleed. Eventually the superintendent of the building and the police arrived. As a result of the incident, the complainant had black and blue marks, had difficulty eating and breathing, and took Tylenol for her pain. An order of protection was issued by the criminal court (Karopkin, J.) on January 14, 1997, to be in effect until February 19, 1997. A second order of protection was issued by the criminal court (Cross, J.) on April 9, 1997, to be in effect until April 8, 1998.
On April 18, 1997, the defendant, who had been drinking, allegedly began a fight with the complainant at their home. According to the complainant, the defendant wanted her to go to bed with him and when she refused he twisted her arm, ripped her watch off, breaking it, and began calling her names. The defendant pulled the phone out of the socket, breaking it, because the complainant wanted to call the police or his father. The defendant then picked up a knife, telling the complainant he would not hurt her. He yelled at her and then hit her in the stomach with his fist. The defendant waved the knife around
The defendant has moved to dismiss the indictment pursuant to CPL 210.20 (1) (b), claiming that the evidence before the Grand Jury was not legally sufficient to establish the offenses as charged.
The January 14, 1997 incident occurred between midnight and 1 o’clock and the order of protection was granted later that day. Therefore, the evidence was legally insufficient to sustain charges of criminal contempt in the first degree and criminal contempt in the second degree for violation of the January 14, 1997 order of protection. Accordingly, the defendant’s motion to dismiss counts 11 and 12 of the indictment is granted.
The motion to dismiss the 2 counts charging the defendant with criminal mischief in the fourth degree by twice breaking the telephone presents an interesting issue. The issue succinctly stated is whether one may be guilty of criminal mischief when the property damaged is jointly or co-owned by the defendant with the complainant. A person is guilty of criminal mischief in the fourth degree "when, having no right to do so nor any reasonable ground to believe that he has such a right, he” "[i]ntentionally damages property of another person”. (Penal Law § 145.00 [1].) Property is that of another person " 'if anyone, other than the defendant, has a possessory or proprietary interest in such tangible property’ ” (Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law § 145.00, at 60, citing Denzer and McQuillan, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law art 145 [1967]). Clearly one has no right to damage his or her spouse’s separate property. (People v Morton, 308 NY 96.) Destruction of marital or jointly owned property, however, presents a more complex issue.
In construing "property of another”, it is helpful to consider New York’s arson and larceny statutes. Larceny charges arise out of depriving an "owner” of his or her property. (Penal Law § 155.05 [1].) "Owner” is defined as "any person who has a right to possession thereof superior to that of the taker, obtainer or withholder * * * A joint or common owner of prop
In contrast, it is an affirmative defense to the felony of arson in the fourth degree that no person other than the defendant had a possessory or proprietary interest in the damaged building or motor vehicle. (Penal Law § 150.05 [2].) It is also necessary, although not sufficient, to make out an affirmative defense to a charge of arson in the third degree that no person other than the defendant had a possessory or proprietary interest in the damaged building or motor vehicle, or if others had such an interest, all consented to the defendant’s conduct. (Penal Law § 150.10 [2].) Thus, it is clear that a person can be charged with arson for damaging another’s property interest despite the fact that he or she is a joint owner.
The criminal mischief statute is unlike the arson section in that it provides no affirmative defense for the destruction of property in which no one but the defendant has a proprietary or possessory interest. Moreover, it provides no definitional defense, like the larceny statute, for charges arising out of the destruction of marital or jointly owned property. Criminal mischief is unlike the crime of larceny in that it involves the damage to or destruction of property and "therefore, possession can never be redeemed.” (See, State v Webb, 64 Wash App 480, 490, 824 P2d 1257, 1263.) Thus, it may be reasonable to interpret "property of another” under the criminal mischief statute to include property which another, in addition to the defendant, owns. (See, State v Superior Ct., 188 Ariz 372, 936 P2d 558.) The law, however, has recently been decided that proof that the property which was damaged is owned by a person other than the defendant is an essential element of the crime of criminal mischief in the fourth degree. (People v Person, 239 AD2d 612, 613 [2d Dept 1997], citing People v Schmid, 124 AD2d 896, 897; People v Kittel, 36 AD2d 730.) As
One commentator has, however, suggested that application of the criminal mischief statute to domestic violence situations in which one spouse damages marital property is supported by general property principles: "When a husband and wife own property together, they are often deemed to have a joint tenancy in the property. 'Joint tenancy is a tenancy of two or more persons whose interests are equal in every respect.’ Each concurrently owns all of the undivided whole and has a nonexclusive right to possess that undivided whole. Thus, when a husband destroys property that he owns jointly with his wife, not only does he destroy his property, which he may have a right to destroy, but he simultaneously destroys his wife’s undivided one hundred percent interest in the property, which he does not have a right to destroy. Therefore, when a husband destroys marital property, he destroys the property of another and violates this element of criminal mischief statutes.” (Lutz and Bonomolo, My Husband Just Trashed Our Home: What Do You Mean That’s Not A Crime?, 48 S Cal L Rev 641, 651 [1997].)
The Supreme Court invalidated a State statute that gave a husband, as "head and master” of property jointly owned with his wife, the unilateral right to dispose of such property without his wife’s consent. (Kirchberg v Feenstra, 450 US 455, 458.) Cases from appellate courts in other jurisdictions have held that one spouse does not have the right to destroy the property of the other just became he or she may also have an ownership interest in it. (See, State v Superior Ct., 188 Ariz, at —, 936 P2d, at 559, supra [property in which defendant holds a joint tenancy interest can be property of another person for
New York’s criminal mischief statute differs from those applied in other States in that it has one additional element: that the person has no right nor any reasonable ground to believe that he has the right to damage another’s property. While the People have the burden of proving that a defendant’s belief was not reasonable, this is a question of fact for the jury to decide. (See, People v Reed, 121 AD2d 574 [landlord should have been permitted to testify about her belief that she was entitled to remove from premises property to which she held title].) A potential mistake of fact defense in this context should not be converted to an absolute defense resulting in dismissal of criminal mischief charges.
It was not long ago when crimes of domestic violence were viewed as a "private matter”. Heightened awareness of the problem in recent years has resulted in recognition of such crimes as a societal issue. The response has been a policy of mandatory arrest (see, CPL 140.10 [4]) and prosecution of domestic violence crimes, even in the absence of willing complain
Accordingly, the defendant’s motion to dismiss the indictment is granted only as to counts 9,11,12, and 14 and is denied as to all other counts.
The complainant’s interest in the telephone damaged in the second incident may be deemed superior to that of the defendant as the protective order was in effect on that date ordering defendant to stay away from the complainant and her home.