Jamel Grubb moves pursuant to CPL 330. 30 (1) to set aside the verdict on one conviction for criminal mischief in the fourth degree, count 9 on the jury’s verdict sheet regarding the outside door of the dwelling at 1251 Stebbins or Reverend James Polite Avenue on two grounds, first that there was no proof as to ownership of the property, and second that there was no proof of damage.The Court denies the motion on the first ground but grants dismissal on the second basis, that of lack of proof of damage to the front door of dwelling.The defense filed its motions late but are herewith considered. The People have failed to file papers or seek an adjournment to answer or amend the previously issued schedule for responses to motions. The People are therefore precluded from responding, from seeking renewal or re-argument.In deciding a CPL 330.30 (1) motion a trial court, unlike an appellate court, is limited to determining whether the trial evidence was legally sufficient to support the verdict and not whether such verdict is against the weight of the evidence. People v. Ventura, 66 NY2d 693 (1985). In an application under CPL 330.30, the trial court may consider questions, not of fact, but only of law, which raise claims of error which are properly preserved for appeal. People v. Simmons, 74 AD3d 1247 (2d Dept 2010). In this case the issue in question was preserved at trial by the defendant’s motion for a trial order of dismissal prior to the count’s submission to the jury.A person is guilty of criminal mischief in the fourth degree when he having no right to do so nor any reasonable ground to believe that he has such right, intentionally damages property of another person. Pursuant to Penal Law §145.13, “property of another” includes “all property in which another person has an ownership interest, whether or not a person who damages such property, or any other person, may also have an interest in such property.” The Court denies the application to dismiss the count of conviction on the basis of a failure of proof regarding the door being “property of another.” In order to prove that the damaged property belonged to another person, the People need not establish title, but they must prove that the property belonged to someone other than the defendant, as opposed to being abandoned. People v. Kittel, 36 A.D.2d 730 (2d Dep’t 1971).To establish that the defendant had no right to damage the property, the People must also show that he lacked the owner’s permission to do so or any “reasonable ground to believe that he had such right. It is generally accepted that “[p]roperty is that of another person, for purposes of this article, if anyone, other than the defendant, has a possessory or proprietary interest in such tangible property. Actual legal title need not be in such other person.” People v. Reade, 247 A.D. 376 (1st Dept. 1936). Thus, the term “property of another” has been held to require proof of ownership of the property in a person other than the defendant. See People v. Bertone, 16 A.D.3d 710, 790 N.Y.S.2d 311 (3rd Dept. 2005).This element, like any other may be established by circumstantial evidence. In the case at bar, the People have established by circumstantial evidence that the building at 1251 James Polite Avenue is in fact owned by another, specifically not Mr. Grubb.While there was no evidence that the building belonged to another, the circumstantial inferences are sufficient to sustain the verdict. It is beyond dispute that Mr. Grubb had no possessory right or interest in the building given that he was no more than a visitor under the defense’s best argument. Proof that property, allegedly destroyed or injured, was that of another is a material element. People v. Kittel, Id. While it is clear that Mr Grubb’s claim to entry into the public area as a guest or visitor would give him some right of access to the common area of the building outside Ms. Evelyn’s apartment and to use the building’s common front door, it cannot be said to be his property. Since the law requires that it not be his property, the lack of evidence of assertion of a property right is conclusive as against Mr. Grubb vis a vis any other individual. The law only requires that the property not be abandoned, and it is clear that the tenancies were evidence that someone, not Mr. Grubb owned the property. The motion to set aside the verdict on the basis that there was no proof regarding the ownership of the property is denied.The motion to set aside the verdict on the basis that the People failed to prove that the defendant damaged the front door is granted. Whether the evidence taken in the best light for the People proved that the defendant’s act had caused damage to the door is purely a legal issue. The law requires that the People prove however that the act of the defendant caused some amount of damage. People v. Hills, 95 N.Y.2d 947, 949 (2000). The amount of “the damage to property is generally established by evidence of the reasonable cost of repairing the property. Where the property is not repairable, however, the replacement cost is an appropriate measure of the damage.” People v. Shannon, 57 A.D.3d 1016, 868 N.Y.S.2d 377 (3rd Dept. 2008).While the extent of damage necessary to sustain a conviction for fourth degree criminal mischief is slight, some proof of an amount of damage is required.The evidence taken in the light most favorable to the People demonstrates that Mr. Grubb gains entry to the premises at 1251 Reverend James Polite Avenue as a visitor, by and to see Ms. Evelyn and his child by Ms. Evelyn. After what appears to be an argument with Ms. Evelyn, Mr. Grubb is seen on video vigorously slamming the door, which apparently becomes stuck leading Carlos Mendoza, a witness at trial and putative victim, to kick open the door in order to open it to allow Mr. Grubb entry and himself to exit.Taken in the light most favorable to the People the video shows Mr. Grubb forcefully shutting the building’s outer door such that he could not on his own gain re-entry. The effort made by Mr. Grubb is present on the video and it appears to be a slamming of that door. Mr. Grubb attempts to re-enter through the door and is unsuccessful. Mr. Mendoza however testified that he did not hear anything prior to descending the stairs, indicating that he did not hear the sound the door made when shut by Mr. Grubb. The video too is soundless. The video indicates that the door was either stuck or locked after Mr. Grubb slammed it.Mr. Mendoza who descended the stairs to the front of the building saw Mr. Grubb struggling with the door. Mendoza then kicked it open. The trial testimony from Mr. Mendoza was that Mr. Grubb told Mr. Mendoza that the door was locked and you had to move it to the side to open it. (Tr 435). There was no evidence adduced between Mr. Grubb slamming the door and Mr. Mendoza kicking it open that would demonstrate that the door was damaged. The testimony established that the door was fully functional again after Mr. Mendoza kicked it outward from the inside either re-aligning it or breaking the lock on the door. The temporary problem Mr. Grubb had in seeking to enter the building appeared to be instantly resolved by Mr. Mendoza’s kicking open the door, an act that itself would physically damage the door. See People v. Hills, 95 N.Y.2d 947, 722 N.Y.S.2d 460, 745 N.E.2d 379Thus, to violate Penal Law §145.00(1), the defendant must possess a specific intent to damage the property of another person. People v. Roberts, 140 A.D.2d 96 (4th Dept. (1988); People v. Summer, 64 A.D.2d 658 (2d Dept 1978). Pursuant to Penal Law §15.05(1), “[a] person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct.” Consequently, unintended property damage generally does not constitute a violation of Penal Law §145.00(1) People v. Washington, 18 N.Y.2d 366 (1966)); See also People v. Clark, 19 Misc. 3d 134[A], 2008 N.Y. Slip Op. 50698[U (App. Term, 2d Dept., 9th & 10th Jur. Dists. 2008). See also Matter of Daniel K, .289 A.D.2d 630 (3d Dept 1982).The legal question posed by the motion is whether or not for the purposes of upholding the conviction the element of conscious intent to damage the door was proven, as opposed to recklessness or the like. Ordinarily intent can be inferred by action but such is not necessarily the case regarding property damage. It is clear that the door was briefly and slightly affected by the slam. There was no evidence adduced that there was damage such that it lowered the value of the door or the property. The issue is whether it is sufficient that the action of Mr. Grubb caused loss of efficiency of the door. People v. Collins 288 A.D.2d 756 (3d Dept. 2001); see, People v. David, 133 A.D.2d 277, 279 (2d Dept. 1987); Cherno v. Bank of Babylon, 54 Misc.2d 277, 279 (Sup Ct Nassau Cty 1967), affd,29 A.D.2d 767 (2d Dept 1968).However, on this record, proof of damage is completely lacking. Unlike in People v. Delvecchio 61 Misc 3d 130(A) (Westchester Supreme Court, App. Term 2016) where the defendant admitted that she had kicked the garage door, and that defendant's act had caused damage to the door. In this case there is no admission by Mr. Grub. See also People v. Barnes, 46 Misc. 3d. 137[A] [App Term, 2d, 11th & 13th Jur Dists 2015]; People v. Gonzalez, 19 Misc 3d 145[A], (App Term, 9th & 10th Jur. Dists. 2008]; People v. Charvat, 8 Misc 3d 13, 16 (App Term, 9th & 10th Jur Dists. 2005).At the trial Mr. Mendoza testified that he was able to close the front door just before the fight between him and Mr. Grubb and he is seen on the video closing the door with no difficulty. The door was closed in the video. People’s Exhibit 22 was admitted but there was no testimony as to when it was taken, whether it was immediately after the incident by the police or some time later. The intervening time, unknown as it is reduced dramatically the weight of the evidence so as to make of low probative value. Other video evidence presented was filmed years after the event.No evidence was adduced as to any particular damage. No evidence was adduced as to any repair of the door. Indeed the fact that a kick restored its operability is circumstantial evidence that this was not the first time this occurred and further that Mr. Grubb was not the cause of the door’s functionality issues, given the evidence is that Mr. Mendoza knew exactly how to remedy the problem. Kicking a door does not give rise to criminal liability. People v. Delvecchio, Id.The Court finds that the evidence before it, in the light most favorable to the People does not demonstrate the specific intent to damage or that the door was damaged by the defendant as required by law. Because there was insufficient evidence of any damage, the Court finds that the charge of criminal mischief in the fourth degree must be dismissed. Count 6 of the indictment and labeled count 9 on the jury’s verdict sheet (damage to building door) is herewith dismissed.This constitutes the order of the Court.Jan. 23, 2019
