If you buy a card that allows you unlimited access to a city subway system, and you then sell swipes from your card to let others access the subway system on your card, are you guilty of theft? No, says the New York Court of Appeals in People v. Hightower (Dec. 11), because you legitimately own the access that you are selling:
The Authority was not deprived of the unknown amount of money that defendant accepted from the subway rider because it never owned those funds.
In People v Nappo (94 NY2d 564 [2000]), we held that the State was not the “owner” of uncollected taxes within the meaning of the statutory definition of the term because “taxes due were not the property of the State prior to their remittance” (id. at 566). Here, the unknown amount of money paid to defendant could have been due and owing to the NYCTA, but as was the case in Nappo, the NYCTA never acquired a sufficient interest in the money to become an “owner” within the meaning of Penal Law § 155.00 (5). In Nappo, we recognized that once a trustee has collected the funds, then they can be said to be the property of the ultimate recipient: “the State may be deemed the ‘owner’ of ‘collected’ but unremitted sales taxes”(id. at 567). Here, as in Nappo, “defendant[] w[as] not in possession, by trust or otherwise, of monies owned by the [NYCTA] (id.).
The People argue that defendant deprived the NYCTA of a portion of its business and therefore he is guilty of petit larceny. We have held that taking away a portion of a person or entity’s business through extortion constitutes larceny (see People v Spatarella, 34 NY2d 157, 162 [1974]). However, we decline to extend that reasoning to these facts because here we must assume that the NYCTA voluntarily transferred this valid MetroCard in a manner consistent with its ordinary course of business by selling the card and receiving the price it set. By contrast, in Spatarella, the victim was compelled to give up a business customer (who, unlike the uncollected taxes in Nappo, was already within his “control” and “possession”) to one of the defendants when that defendant threatened the victim with physical injury.
Accordingly, there is no basis upon which the petit larceny charge in the accusatory instrument can be upheld.
The New York Times adds (h/t: Blake Reid):
A spokeswoman for the district attorney’s office in Manhattan, which argued against the appeal, said the office would continue prosecuting cases of MetroCard frauds using other laws. “Selling a swipe is still illegal,” the spokeswoman, Erin Duggan, said.
Those convicted of similar schemes who had been charged with petty larceny can now appeal those decisions. But prosecutors do not expect many appeals, since the punishment, usually brief community service or a day in jail, is relatively light.