This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 154
The People &c.,
            Respondent,
        v.
Matthew P.,
            Appellant.




          Amy Donner, for appellant.
          Ryan Gee, for respondent.




STEIN, J.:
          In this appeal, we are asked to consider whether our
decision in People v Hightower (18 NY3d 249 [2011]) precludes the
larceny prosecution of a defendant who, in exchange for a fee,
used a stolen New York City Transit Authority (hereinafter NYCTA)
key to allow two individuals to enter the subway system through

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an emergency exit gate.   Inasmuch as Hightower is distinguishable
and does not bar prosecution under the circumstances of this
case, the Appellate Term properly upheld defendant's conviction.
We, therefore, affirm.
                                I.
           In June 2011, defendant was charged, by misdemeanor
information, with petit larceny, among other crimes.    The factual
portion of the information alleged that defendant approached two
undercover transit police officers inside a subway station and
said, "you have $2, I will let you in."   Upon defendant's receipt
of payment, the officers saw him "take a key, open the emergency
exit gate and allow [the officers] and defendant through said
gate into the subway system, thereby depriving the [NYCTA] of
revenue otherwise owed it by the defendant for access to the
subway system."   The deponent officer picked up the key from the
ground where she saw defendant throw it; defendant then told the
officer, "if I told the guy that taught me this he would laugh at
me.   I should have known you were both cops."   Based upon her
training and experience, the deponent officer stated that only
NYCTA employees have permission to possess such a key, and that
defendant did not have permission or authority to take the key or
use it.
           Defendant pleaded guilty to petit larceny under the
information; he also pleaded guilty to theft of services under a
second information.   As agreed, he received youthful offender


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treatment and an aggregate sentence of 15 days in jail.   On his
appeal, the Appellate Term affirmed, rejecting defendant's
challenge to the information charging him with petit larceny as
jurisdictionally defective (41 Misc 3d 128[A] [App Term, 1st Dept
2014]).   A Judge of this Court granted defendant leave to appeal
(23 NY3d 1024 [2014]).
                                II.
     It is well settled that "'[a] valid and sufficient
accusatory instrument is a nonwaivable jurisdictional
prerequisite to a criminal prosecution'" (People v Dreyden, 15
NY3d 100, 103 [2010], quoting People v Case, 42 NY2d 98, 99
[1977]; see People v Kalin, 12 NY3d 225, 229 [2009]).   To be
legally sufficient, "the factual portion of a local criminal
court information" must meet the requirements
     "that it state 'facts of an evidentiary character
     supporting or tending to support the charges' (CPL
     100.15 [3]; see CPL 100.40 [1] [a]); that the
     'allegations of the factual part . . . together with
     those of any supporting depositions . . . provide
     reasonable cause to believe that the defendant
     committed the offense charged' (CPL 100.40 [1] [b]);
     and that the '[n]on-hearsay allegations [of the
     information and supporting depositions] establish, if
     true, every element of the offense charged and the
     defendant's commission thereof' (CPL 100.40 [1] [c];
     see CPL 100.15 [3])" (People v Casey, 95 NY2d 354, 360
     [2000]).
A failure to comply with either the reasonable cause requirement
of section 100.40 (1) (b) or the prima facie case requirement of
section 100.40 (1) (c) constitutes a jurisdictional defect (see
Hightower, 18 NY3d at 254; People v Jones, 9 NY3d 259, 262-263


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[2007]).1
     Stated otherwise, "[a]n information is valid for
jurisdictional purposes if it contains nonconclusory factual
allegations that, if assumed to be true, address each element of
the crime charged, thereby affording reasonable cause to believe
that defendant committed that offense" (People v Jackson, 18 NY3d
738, 741 [2012]).   This standard is met when "the factual
allegations of an information give an accused notice sufficient
to prepare a defense and are adequately detailed to prevent a
defendant from being tried twice for the same offense" (Casey, 95
NY2d at 360).   Moreover, as we have repeatedly emphasized, if an
accused has received fair notice and double jeopardy has been
forestalled, the factual portion of the information "should be
given a fair and not overly restrictive or technical reading"
(id.; see Jackson, 18 NY3d at 746; Dreyden, 15 NY3d at 103;
Kalin, 12 NY3d at 230).
     Here, defendant argues that the allegations in the
information -- that he used a NYCTA key (that he did not have



     1
        We have referred to the requirement set forth in CPL
100.40 (1) (c) as "the prima facie case requirement" (People v
Dumay, 23 NY3d 518, 522 [2014] [internal quotation marks and
citations omitted]). However, we have also clarified that CPL
100.40 (1) (c), in fact, has "two 'prima facie' requirements
. . . that first, there must be factual allegations establishing
every element of the offense and second, those allegations must
be 'non-hearsay'" (Casey, 95 NY2d 354, 362 [2000]). Only the
first prima facie requirement -- that the information state a
crime by alleging all of the necessary elements -- is
jurisdictional and nonwaivable (see id. at 362-367).

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authorization to use) to let two undercover police officers
through a subway station emergency exit gate in exchange for $2
-- did not establish that he committed the crime of petit larceny
because the NYCTA was not the "owner" of any property that was
taken within the meaning of the larceny statutes.   In charging
defendant with larceny by information, the People were required
to establish reasonable cause to believe that, "with intent to
deprive another of property or to appropriate the same to himself
or to a third person, [defendant] wrongfully t[ook], obtain[ed]
or with[held] such property from an owner thereof" (Penal Law §
155.05 [1] [emphasis added]; see Penal Law § 155.25).    "Property"
includes "any money, personal property, . . . or thing of value"
(Penal Law § 155.00 [1]).   In regard to the challenged element
here, an "owner" is defined as "any person who has a right to
possession [of property] superior to that of the taker, obtainer
or withholder" (Penal Law § 155.00 [5]).   As reflected in its
text, section 155.05 (5) "defines ownership broadly . . . [and]
codifies the common-law rule, long recognized in this State, that
ownership is not limited to the title owner of the property.
Rather, it is enough that the person have a right to possession
of the property superior to that of the thief" (People v Wilson,
93 NY2d 222, 225 [1999] [internal citations omitted]).   Thus, as
we have repeatedly explained, "the definition of ownership does
not require that the owner have 'an independent right of
possession but only that he [or she has] a possessory right


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which, however limited or contingent, [is] superior to that of
defendant'" (id. at 225-226, quoting People v Hutchinson, 56 NY2d
868, 869 [1982]).
     Under circumstances that were similar to, but
distinguishable from, those presented here, this Court previously
concluded that an information did not provide reasonable cause to
believe that the defendant committed the charged offense of petit
larceny where the information alleged that he used an unlimited
MetroCard to swipe another person through a subway turnstile in
exchange for money (see Hightower, 18 NY3d at 254).   We noted
that the unlimited MetroCard at issue in Hightower was legally
transferrable, although the person lending or giving away the
card was not permitted to accept money in exchange (see id. at
252).   Critically, while we acknowledged our prior holding in
People v Spatarella (34 NY2d 157, 162 [1974]) that, as Hightower
put it, "taking away a portion of a person['s] or entity's
business" could constitute larceny under certain circumstances,
we distinguished Hightower on the ground that "the NYCTA
voluntarily transferred [the] valid MetroCard in a manner
consistent with its ordinary course of business by selling the
card and receiving the price it set" (18 NY3d at 255 [emphasis
added]).   That distinguishing factor is not present here.    The
NYCTA was not the owner of the unlimited MetroCard in Hightower
or the "business" associated with it because, as compared with
the defendant, who lawfully purchased the unlimited MetroCard,


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the NYCTA did not have a superior right of possession.     That is,
under the circumstances presented in Hightower, once the NYCTA
sold the card to defendant, it could not reasonably expect to
profit from the use of the card.    Thus, the defendant did not
commit petit larceny because "the unknown amount of money paid to
defendant could have been due and owing to the NYCTA, but . . .
[it] never acquired a sufficient interest in the money to become
an 'owner'" within the meaning of the statute (Hightower, 18 NY3d
at 255).
     In contrast, the Appellate Division, First Department, has
concluded, albeit in dicta, that legally sufficient evidence
supported a conviction of petit larceny where a defendant used a
MetroCard with a bent magnetic strip to sell rides to other
persons (People v James, 101 AD3d 447, 448 [1st Dept 2012], lv
denied 20 NY3d 1062 [2013]).    Distinguishing Hightower -- which
involved a purchased, legally transferrable, unaltered MetroCard
-- the First Department concluded that the defendant was guilty
of petit larceny because "he sold 'swipes' that rightfully
belonged to the [NYCTA]" through unauthorized use of an altered
MetroCard (James, 101 AD3d at 488).     Similarly here, the NYCTA
did not voluntarily transfer the key that defendant used to sell
entrance to the subway system or receive a set price for it (cf.
Hightower, 18 NY3d at 255).    Unlike the MetroCard at issue in
Hightower, the NYCTA was the rightful owner of the key because it
"had a right of possession [of the key] superior to that of


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defendant, who had no right of possession whatsoever" (People v
Hutchinson, 56 NY2d at 869).   Nor did defendant have any
possessory right or lawful expectation with respect to the
business generated from the use of the key.
     In short, the information adequately alleged all the
elements of a larceny in setting forth defendant's unauthorized
use of the illegally-obtained key to allow the undercover
officers to enter through the emergency exit gate in exchange for
money, thereby depriving the NYCTA, as the owner, of its
property.   Accordingly, Appellate Term properly rejected
defendant's argument that the information was jurisdictionally
defective and affirmed his conviction.   Finally, we reject
defendant's remaining argument as lacking in merit.
     Accordingly, the order of the Appellate Term should be
affirmed.




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People v Matthew P.
No. 154




LIPPMAN, Chief Judge (dissenting):
          Defendant's conduct was clearly illegal and is not to
be condoned, but it does not amount to petit larceny.   He could
have, instead, properly been charged with theft of services
(Penal Law § 165.15 [3]) or illegal access to Transit Authority
services (21 NYCRR § 1050.4 [c]), which apply directly to either
obtaining or providing illegal access to the subway system.    This
case, however, where defendant sold access to the subway system,
which he then provided by use of a key, is not meaningfully
distinguishable from People v Hightower (18 NY3d 249 [2011]).    I
therefore dissent and would hold that the information was
jurisdictionally defective because the New York City Transit
Authority (NYCTA) was not the owner of property, either in the
form of potential fares or the money paid to defendant, within
the meaning of the larceny statute.
          In Hightower, the defendant had used an unlimited
MetroCard to allow other individuals access to the subway system
in exchange for a fee.   There, we determined that the accusatory
instrument was jurisdictionally defective as to the charge of
petit larceny because it did not provide reasonable cause to


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believe that the defendant had taken property belonging to the
NYCTA.    We held that the NYCTA had not been "deprived of the
unknown amount of money that defendant accepted from the subway
rider because it never owned those funds" (Hightower, 18 NY3d at
255).
            Analogizing the NYCTA's lack of ownership of the
potential fare to the State's lack of ownership of uncollected
taxes, we relied upon People v Nappo (94 NY2d 564 [2000]), where
the defendants had been charged with larceny for failing to pay
the required taxes on motor fuel that had been imported from New
Jersey.    There, we had held that, although the failure to remit
applicable taxes was a violation of the Tax Law, the "defendants
did not steal money that belonged to New York State," as "[t]he
taxes due were not the property of the State prior to their
remittance" (Nappo, 94 NY2d at 566).    Thus, in Hightower, we
determined that "the unknown amount of money paid to [the]
defendant could have been due and owing to the NYCTA, but . . .
the NYCTA never acquired a sufficient interest in the money to
become an 'owner' within the meaning of Penal Law § 155.00 (5)"
(18 NY3d at 255).    Similarly, here, the NYCTA was not the "owner"
of the funds paid to defendant by the undercover officers.
            The majority appears to view the NYCTA's "ownership" of
potential fares as dependent upon the mechanism an individual
uses to gain access to the subway system.    However, the NYCTA's
rightful ownership of the key used by defendant here bears no


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relationship to the issue of the NYCTA's ownership of potential
subway fares.   Hightower does not stand for the proposition that
the NYCTA had an ownership interest in potential fares that it
somehow ceded to the defendant when he purchased a valid
unlimited MetroCard.    Rather, the NYCTA was "never" the owner of
the potential fares arrogated by the defendant through use of the
MetroCard (see 18 NY3d at 255).
          Notably, in rejecting the argument that the defendant
in Hightower had been guilty of petit larceny by depriving the
NYCTA of a portion of its business, we distinguished the
situation where a business is forced to give up an existing
customer (18 NY3d at 255).   We declined to extend the reasoning
of People v Spatarella (34 NY2d 157 [1974]), where the defendant
was guilty of larceny by extortion, to the situation where the
NYCTA had voluntarily sold a MetroCard to the defendant.     In
Spatarella, the defendant had disrupted an existing business
relationship for refuse removal by threatening the former
provider with bodily harm unless he gave up his customer.     There,
we concluded that intangible rights, such as a party's business,
could be considered property, subject to larceny by extortion
(see 34 NY2d at 162).   However, in declining to apply the
reasoning of Spatarella in Hightower, we distinguished the
situation where an individual was forced to give up an existing
business customer, from the more closely analogous case presented
in Nappo, where the taxes were not yet in the State's possession


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or control.    Here, the NYCTA's ownership of the unpaid fares is
no less inchoate than that presented in Hightower.
            Accordingly, because the NYCTA was not the owner of the
potential fares or the money paid to defendant, I would modify
the Appellate Term order to vacate the plea to petit larceny and
dismiss that information.
*   *   *     *   *   *   *   *    *      *   *   *   *   *   *     *   *
Order affirmed. Opinion by Judge Stein. Judges Pigott, Rivera,
Abdus-Salaam and Fahey concur. Chief Judge Lippman dissents in
an opinion.

Decided November 19, 2015




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