People v. Tuozzo

Appeal by defendant from a judgment of the Supreme Court, Queens County (Sharpe, J.), rendered February 25, 1980, convicting him of grand larceny 'in the second degree, criminal possession of stolen property in the first and third degrees, and unauthorized use of a vehicle, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the conviction of unauthorized use of a vehicle, and the sentence imposed 814 thereon, and said count is dismissed. As so modified, judgment affirmed and the case is remanded to the Supreme Court, Queens County, for further proceedings pursuant to CPL 460.50 (subd 5). Count four of the indictment, charging defendant with the unauthorized use of a vehicle pursuant to subdivision 1 of section 165.05 of the Penal Law, is a lesser included offense of Count two of the indictment, charging him with criminal possession of stolen property in the first degree pursuant to section 165.50 of the Penal Law. All elements required to prove the former offense were required to establish the greater offense. The judgment should be modified accordingly (People v Turner, 61 AD2d 845; People v Orsilini, 69 AD2d 766; People v Moore, 71 AD2d 711; see CPL 1.20, subd 37; 300.40, subd 3, par [b]). The court correctly refused to charge subdivision 3 of section 165.05 of the Penal Law, as such subdivision is not applicable to the facts in this case, in which defendant falsely reported a rented car stolen and changed its license plates. Under the facts of this case the other issues raised by the defendant also do not warrant reversal. Titone, J. P., Lazer, Weinstein and Thompson, JJ., concur.