DECISION & ORDER The defendant was charged in a misdemeanor information with eight counts each of Petit Larceny (Penal Law §155.25) and Criminal Possession of Stolen Property in the Fifth Degree (CPSP) (Penal Law §165.40). The defendant moved to dismiss the charges on the following grounds: (1) the Petit Larceny counts were facially insufficient and beyond the statute of limitations, and (2) the CPSP counts were beyond the statute of limitations and barred by double jeopardy. In response, the People conceded the eight Petit Larceny counts were facially insufficient. The People opposed the defendant’s remaining arguments that the Court should dismiss the CPSP counts.For the reasons set forth below, the defendant’s motions to dismiss the CPSP counts are denied.BACKGROUNDOn October 13, 2016, the defendant was arraigned on a felony complaint (Docket No. 2016RI008475) for one count of Criminal Possession of Stolen Property in the Third Degree (Penal Law §165.50). The People alleged that the defendant possessed 60 stolen jewelry pieces, which he tried to sell, or sold, in Richmond County at three pawn shops (Top Dollar located at 1730 Richmond Avenue, S&L Pawn Shop at 768 Port Richmond Avenue, and Samantha’s Jewelry at 290 Port Richmond Avenue) between January 19, 2016, and September 22, 2016. On February 1, 2017, the People reduced that charge to Criminal Possession of Stolen Property in the Fifth Degree (Penal Law §165.40), to which the defendant pled guilty. The jewelry in question was stolen from Diane Diaz.On October 1, 2018, the defendant was arrested for eight counts each of Petit Larceny (Penal Law §155.25) and Criminal Possession of Stolen Property in the Fifth Degree (Penal Law §165.40). It was alleged that eight pieces of jewelry, which were owned by Diane Bender (who the defendant claims is Diane Diaz), were sold by the defendant to four different pawn shops (C&C Communications located at 76 Victory Boulevard, Loan Island at 152 New Dorp Lane, Jimmy’s Fine Jewelry at 1909 Victory Boulevard, and Richmond County Rare Coins at 1570 Richmond Road) between March 19, 2018, and August 15, 2018, in Richmond County. It is undisputed that the jewelry sold to the pawnshops in 2016 was different from the jewelry sold in 2018.STATUTE OF LIMITATIONSCriminal Possession of Stolen Property in the Fifth Degree is defined in Penal Law §165.40:“A person is guilty of criminal possession of stolen property in the fifth degree when he knowingly possesses stolen property, with intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner thereof. Criminal possession of stolen property in the fifth degree is a class A misdemeanor.”The People must commence a criminal action for a class A misdemeanor “within two years after the commission thereof” (CPL 30.10 [1] & [2] [c]).The defense claims that he committed CPSP when he stole the jewelry more than two years before the criminal court complaint was filed, and the two-year statute of limitations to prosecute him has expired and the charges must be dismissed. The People claim that it was a continuing crime and at trial they will prove he committed his last possessory acts between March 19, 2018, and August 15, 2018. As discussed below, criminal possession of stolen property is a continuing crime and the statute of limitations does not begin to run until the defendant’s last possessory act.1. Statutory Interpretation of Criminal Possession of Stolen Property and the Statute of Limitations.Prior to 1965, a penal statute was strictly construed against the State and in favor of the accused (People v. Farone, 308 NY 305 [1955] cert denied 350 US 828 [1955]), if the statute’s provisions were plain and obvious (People v. Lang, 164 NYS 5 [App Term, 2d Dept 1917]; People v. Cumbee, 204 NYS2d 408 [Rochester City Ct 1960]) and if the crime charged was malum prohibitum (immoral because it is prohibited, for example, driving without a license or selling fireworks) (see People v. Mobile Oil Corp., 48 NY2d 192 [1979]) rather than malum in se (prohibited because it is immoral, for example, theft, rape, and murder) (McKinney’s Cons Laws of NY, Book 1, Statutes §271). In 1965, however, the Legislature overruled the common law interpretation method when it enacted Penal Law §5.00 (L1965, ch 1030), which directs the courts that,“The general rule that a penal statute is to be strictly construed does not apply to this chapter, but the provisions herein must be construed according to the fair import of their terms to promote justice and effect the objects of the law.”The Criminal Procedure Law, which is not a penal statute but instead is procedural law, has no equivalent interpretation instructions, and thus the court must interpret the statute of limitations (CPL 30.10) utilizing common law principles (see Statutes §315). When the Legislature amends a statute, it is deemed to have intended a material change in the law (Statutes §193; e.g. Matter of Stein, 131 AD2d 68, 72 [2d Dept 1987] app dismissed 72 NY2d 840 [1988]; Lichtenstein v. Grossman Constr. Corp., 221 AD 527 [2d Dept 1927] affd as modified 248 NY 390 [1928]). The courts must seek the new legislative purpose and construe the law to effectuate its purpose (Statutes §193; see People v. Buccolieri, 91 Misc 156 [Ct Gen Sessions, NY County, 1914] [when the Legislature amended the crime of seduction, it served to change the relevant statute of limitations from one year to two years]).Prior to the Legislature enacting Penal Law §165.40, the predecessor crime was contained in Penal Law §1308, “Buying or receiving stolen or wrongfully acquired property.” With that crime, it was the act of buying or receiving stolen property that triggered the statute of limitations. When the Legislature enacted the new Penal Law in 1965 (L.1969, ch. 1030, §165.40) it specifically struck the “buying” or “receiving” elements and replaced them with “possessing” stolen property. It is this important change to the statute that now finds itself at the center of the instant case.2. Is Criminal Possession of Stolen Property a Continuing Offense?In Penal Law §1308, buying or receiving stolen property required an act that had one definable moment: when the defendant came into possession of the property in question. The Legislature is free to define criminal conduct in terms of “temporal or spatial units” (Matter of Johnson v. Morgenthau, 69 NY2d 148, 151 [1987], quoting Brown v. Ohio, 432 US 161, 169 [1977]) and has done so in some statutes (e.g., Penal Law §220.39 [1] [knowingly and unlawfully sells]). But, the amendment to Penal Law §165.40 removed that definable moment and transformed it into a continuing offense by replacing buying or receiving with possession. Possess “means to have physical possession or otherwise exercise dominion or control over tangible property” (Penal Law §10.00 [8]).While neither party cited New York case law on this proposition, and the court could not find a New York case on point for possessing stolen property, to hold otherwise would give rise to absurd results. If the court sided with the defense, then a person could buy any illegal narcotic or weapon, store it until the statute of limitations had run from its purchase date, and then walk around New York with narcotics or weapons out in the open if they had a receipt showing when they purchased or received the narcotic or weapon. “There is absolutely nothing indicating that the legislation intended that any person who unlawfully took possession of such items and avoided prosecution for the length of the statute of limitations could thereafter continue to possess such items with impunity” (State v. Maidwell, 137 Idaho 424, 427, 50 P3d 439, 442 [2002]). Here, the New York State Legislature’s 1965 amendment is direct evidence that it meant to move away from the non-continuing crime of “buying” or “receiving” stolen property and replace it with the continuing crime of “possessing” stolen property. Moreover, the Court of Appeals has found both criminal possession of a weapon and criminal possession of a controlled substance to be continuing crimes, albeit for double jeopardy and conspiracy purposes (see Matter of Johnson, id.; People v. Curtis, 143 AD2d 1030 [2d Dept 1988]; People v. Carvajal, 6 NY3d 305 [2005]). Those cases are germane, however, because criminal possession of a weapon, criminal possession of a controlled substance, and criminal possession of stolen property all rely on the same definition for “possession” (Penal Law §10.00 [8]). Thus, it is logical that they are continuing crimes for all purposes.This interpretation aligns New York with a majority of states that have found criminal possession of stolen property is a continuing crime (see State v. Lodermeier, 481 NW2d 614 [Sup Ct South Dakota 1992]; State v. Lawrence, 312 NW2d 251 [Sup Ct Minnesota 1981]; Commonwealth v. Farrar, 271 Pa Super 434, 413 A2d 1094 [Sup Ct Pennsylvania 1980]; State v. Reeves, 264 Ark 622, 574 SW2d 647 [Sup Ct Arkansas 1979]; State v. Knutson, 81 Or App 353, 725 P2d 407 [Ct App Oregon 1986], but see State v. Nistler, 268 Or App 470, 342 P3d 1035 [Ct App Oregon 2015] [securities theft has different statute of limitations than for property that is stolen and concealed]; State v. Schneller, 199 La 811, 7 So2d 66 [Sup Ct Louisiana 1942] [prosecutor could not charge defendant with multiple counts for each day he possessed stolen property because it was a continuing crime]; State v. Davis, 302 NC 370, 275 SE2d 491 [Sup Ct North Carolina 1981] [distinguishing receiving crimes from possession crimes]; People v. Zuniga, 80 P.3d 965 [Ct App Colorado 2003]).A few states have taken the opposite view (e.g., State v. Barnes, 124 Idaho 379, 859 P2d 1387 [Sup Ct Idaho 1993] [statute of limitations commences for possession of stolen property when defendant came into possession]; State v. Saathoff, 29 P.3d 236 [Sup Ct Alaska 2001]; State v. Webb, 311 So.2d 190 [Florida Dist Ct App 1975]; State v. Harrison, 561 NW2d 28 [Sup Ct Iowa 1997]). In Florida and Alaska, however, the stolen property statutes are similar to the old New York Penal Law §1308; it is buying or receiving the property that triggers the statute of limitations (Alaska Statutes §11.46.190 — Theft by receiving; Florida Statutes §811.16 — Larceny; Receiving Stolen Goods [renumber 812.031 in 1974; repealed in 1977; replaced with 812.019 in 2006, Dealing in stolen property]). Iowa, which utilizes “possession” as an element appears to stand alone in its interpretation (Harrison, id.) and is not persuasive in interpreting the New York statute in light of the New York statute’s amendment history.In State v. Barnes, id., the Idaho Supreme Court reviewed its state’s stolen property statutes, which is similar to New York’s CPSP statute. The Barnes Court noted the absurdity of finding that possession of stolen property is not a continuing crime, yet nonetheless ruled in the defendant’s favor. It took the Idaho Supreme Court less than a decade to reverse this ruling, and in doing so declared that it had made a grave error in the Barnes decision, re-affirmed that interpreting whether a crime is continuous depends upon the legislative intent defining the crime, not wording in the general statute of limitations, and lined up Idaho’s interpretation with the majority view (State v. Maidwell, 137 Idaho 424, 50 P3d 439 [2002]).In sum, to avoid absurd results and at the same time interpret these statutes to logically effectuate the Legislature’s intent, the court concurs that possessing stolen property is a continuing offense (see, State v. Lawrence, 312 NW2d 251 [Sup Ct Minnesota, 1981] [the Legislature adding the term possessing denotes the intent to convert the statute into a continuing offense]). Because possession crimes are continuing offenses, the limitations period commenced when the offense was completed, not when it began (see, People v. Minott, 41 Misc3d 1002 [Crim Ct, N Y County 2013] [failure to re-register as gun offender is a continuing offense for statute of limitations purposes]). Here, the defendant completed the crime in 2018 when he sold the jewelry and intended to benefit himself, and the statute of limitations began running on the 2018 sales dates.DOUBLE JEOPARDYThe defense next claims that the defendant cannot be charged with Criminal Possession of Stolen Property in the Fifth Degree in 2018, because he already pled guilty to Criminal Possession of Stolen Property in the Fifth Degree in 2017. But, defendant’s previous conviction for CPSP does not make him immune from prosecution for CPSP forever; especially for possessing different stolen jewelry at a later time. Although CPL 40.20 (1) states that “A person may not be twice prosecuted for the same offense,” the term “offense” is defined in CPL 40.10 (1):“An ‘offense’ is committed whenever any conduct is performed which violates a statutory provision defining an offense; and when the same conduct or criminal transaction violates two or more such statutory provisions each such violation constitutes a separate and distinct offense.“Criminal transaction” is further defined in CPL 40.10 (2) as:“conduct which establishes at least one offense, and which is comprised of two or more or a group of acts either (a) so closely related and connected in point of time and circumstances of commission as to constitute a single criminal incident, or (b) so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture.”Here, the dates, pawn shops, and jewelry were all different and therefore they were separate and distinct criminal transactions (see, e.g., People v. Lynch, 25 NY3d 331 [2015] [two different completed crimes relating to the same fraudulent DMV license application did not trigger double jeopardy]; People v. Van Nostrand, 217 AD2d 800 [3d Dept 1995] lv denied 32 NY3d 1171 [2019] [rape prosecution not barred by defendant's conviction for rape of the same victim at a different time and place]). Moreover, the People did not possess legally sufficient evidence to support a conviction for CPSP for the 2018 jewelry when the defendant pled in 2017 (see, People v. DeMarco, 167 AD2d 640 [3d Dept 1990]; People v. Lindsly, 99 AD2d 99 [2d Dept 1984] app withdrawn 62 NY2d 987 [1984]). The defendant’s motion to dismiss on double jeopardy grounds is denied.CONCLUSIONThe People have conceded that the Petit Larceny counts are facially insufficient, and the defendant’s motion to dismiss these counts is granted. The defendant’s remaining motions to dismiss the information on statute of limitations and double jeopardy grounds are denied. Both parties should be prepared to proceed on the scheduled suppression hearings on May 14, 2019.Dated: April 30, 2019Staten Island, New York
