Assembly Bill A490

                                BILL NUMBER:A490

TITLE  OF BILL:  An act to amend the penal law, in relation to the crime
of unauthorized use of a motor vehicle in the second degree

PURPOSE OR GENERAL IDEA OF BILL:

This bill expands the list of predicate  crimes  elevating  the  present
crime  of  the  unauthorized  use  of a vehicle to a felony. Its primary
purpose is to facilitate the prosecution of persons who can be currently
prosecuted only for unauthorized use of the vehicle, but who have previ-
ous convictions for car  theft,  auto  stripping,  or  similar  offenses
involving  automobiles. It also remedies an anomaly in the present stat-
ute.

Effects of the Present Law Which This Bill Would Alter: Currently, Penal
Law 165.06 allows for the felony prosecution of persons who  commit  the
offense  of  unauthorized  use  of a vehicle-popularly but inaccurately,
known as "joyriding"-- twice within a ten year period.  However, current
law does not allow this statute to be used when the defendant's previous
conviction was for the highest degree of unauthorized use of a  vehicle,
or  for  other  car  related crimes such as actual theft of the vehicle,
even though those offenses are more serious then  joyriding.  This  bill
would permit the use of these crimes as predicate convictions.

SUMMARY OF SPECIFIC PROVISIONS:
              

Section  1  amends section 165.06 of the Penal Law as amended by chapter
413 of the laws of 1982

Section 2 provides for an effective date

JUSTIFICATION:

Unauthorized use of a vehicle is easier to prove then larceny or  crimi-
nal  possession  of  a  stolen vehicle because it is defined in terms of
taking, operating, riding in, or "exercising  control  over"  a  vehicle
without the owner's permission. Unlike other auto theft crimes, there is
no  need  to  establish  that the defendant himself or herself committed
actual theft of the car, intended to permanently deprive  the  owner  of
the  vehicle,  or  knew  that  it  had been stolen.   Thus, although the
concept of "joyriding" was originally aimed at persons, typically  teen-
agers, who temporarily borrow a car without permission, and is appropri-
ately  classified  as  a misdemeanor in that situation, in practice very
often unauthorized use of statutes are  used  to  prosecute  actual  car
thieves,  particularly when the police interrupt a thief before a stolen
car can be driven away, or when  more  then  one  person  is  discovered
inside  a stolen vehicle and, although the passengers are aware that the
driver has no permission to use the  vehicle,  only  the  diver  can  be
charged with the knowledge that it had been stolen.

Recognizing  the  practical  use,  in  1981 a new degree of the crime of
unauthorized use was added to the Penal  Law,  making  it  a  felony  to
commit two acts of unauthorized use of a vehicle within a ten year peri-
od.  However,  although  sponsor's  memorandum in support of that legis-
lation indicates that its intent was to impose added punishment for "the
professional  car  thief,"  the  new crime only applied to those who had
been previously convicted of the unauthorized use of a  vehicle  in  the
third  or second degrees, and not those who had previous convictions for
the actual larceny of the vehicle or other serious auto related  crimes.
This has been labeled a "significant omission" Donnino, Practice Commen-
tary, Penal Law 165.60, vol. 39.

The  present  bill  would  correct  this omission by making the crime of
unauthorized use in the second degree also  applicable  to  those  whose
previous convictions were for grand larceny or criminal possession, auto
stripping,  unauthorized  use in the first degree, or other auto-related
offenses. Thus, for example, the professional car thief who  has  previ-
ously  been convicted of grand larceny rather then unauthorized use of a
vehicle, but who can presently be prosecuted only for the misdemeanor of
unauthorized use of a car in the third degree, would now qualify for the
second degree offense.

It should be noted that the bill applies  only  to  those  with  certain
serious  prior  convictions and does not change the penalty of the first
offense of the unauthorized use of a vehicle, which remains a  misdemea-
nor.  Moreover,  the  present exemption from the second degree crime for
those whose first unauthorized use conviction involves a violation of  a
rental or repair agreement is also continued.

PRIOR LEGISLATIVE HISTORY:

2007-8 A.465 Referred to Codes 2005-6 A.221 Referred to Codes
2003-4 A.3180 Referred to Codes
2001-2 A.1096 Referred to Codes
1999-00 A.4720 Referred to Codes
        S.2678 Passed Senate.
1997-98 A.1828 Referred to Codes
        S.1187 Passed Senate

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

None.

EFFECTIVE DATE:

Immediately.