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Issues In NY Criminal Law--Vol. 3, #4©

Issue: The effect of a rightful owner of property not testifying in larceny cases.

IN many criminal cases, particularly larceny-related, the property owner is potentially an important figure. In some cases, though, the owner may not be present to testify.  This problem has arisen in a variety of crimes:

  1. possession of burglar's tools
  2. larceny
  3. jostling
  4. unauthorized use of a motor vehicle
  5. possession of stolen property
  6. criminal mischief
  7. robbery.

Grand Jury
When presenting a case to a grand jury, an owner need not testify in person. An affidavit as to ownership, value, and lack of another's license or privilege may be introduced instead.  CPL 190.30(3). 

Accusatory Instrument 
Where the accusatory instrument is not signed by the property owner, however, the issue may arise as to its sufficiency.  Compare People v Wayne, 161 Misc2d 996, 615 NYS2d 826 (Crim Ct 1993) (when defendant was seen taking car battery and antenna from trunk, that the property was another's may be inferred) with People v Hurtado, 116 Misc2d 897, 456 NYS2d 660 (Crim Ct 1982) (inability to produce nonhearsay information on accusatory instrument is fatal).  At trial, it is possible for the prosecution to establish a prima facie case, and even proof beyond a reasonable doubt, without the owner's testimony. People v Johnson, 208 AD2d 469, 617 NYS2d 325 (1st Dept 1994) (robbery). 

The leading case, People v Borrero, involved possession of burglar's tools. The Court of Appeals noted that intent to use implements for an illegal purpose may be established circumstantially.  While it is "preferable practice" to show another person's ownership, failure to do so is not necessarily fatal to the prosecution's case.  A defendant's lack of ownership may be reasonably inferred from the circumstances. People v Borrero, 26 NY2d 430, 311 NYS2d 475 (1970). 

One lower court decision, in addressing the crime of Jostling (Penal Law §165.25),  noted: " . . . the jostling statute apparently relies heavily upon a police officer's discretion in ascertaining whether a person's conduct is criminal.  This is especially so since it was the intent of the statute to not require the testimony of the alleged victim."  People v Burgos, 82 Misc 2d 353, 369 NYS2d 327 (Sup Ct 1975). In such cases, the only prosecution witness often is a police officer. See also, People v Victor P., 120 Misc 2d 770, 466 NYS2d 572 (Crim Ct 1983) (Sexual abuse 3rd). 

Evidence, such as of the defendant attempting to break into a car, is typically introduced. Additional evidence may be supplied by the defendant's own statement, People v Caraballo, 135 Misc 2d 536, 515 NYS2d 965 (Crim Ct 1987), or evidence of flight. People v Stafford, 173 AD2d 233, 569 NYS2d 441 (1st Dept 1991). 

Obviously, the prosecution's case is strengthened by the testimony of the owner, or at least some evidence that someone other than the defendant owned the property in question. 

Where no owner testifies, a "missing witness" charge may be appropriate. Yet, even where a missing witness charge is denied, the defendant should be able to comment in closing argument to the jury on the owner's absence. People v Walker, 119 AD2d 521, 500 NYS2d 704 (1st Dept 1986); Handling a Criminal Case in New York, § 18:416 (West Group 2000). 

Where the owner does not testify, the prosecution's case may be entirely circumstantial, but still the proof may till be sufficient. People v Borrero, supra.  In these cases, a "moral certainty" charge may be required. CJI 9.05. Handling, §18:420. 

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