An offender, indicted for the crimes of grand larceny in the second degree (six counts), grand larceny in the third degree (three counts), petit larceny (one count), criminal tampering in the second degree (five counts), and theft of services (five counts), brings this omnibus motion to (1) inspect the grand jury minutes and dismiss the indictment due to insufficient evidence before the grand jury; (2) to dismiss specific counts in the indictment because they are duplications of and inconsistent with other counts and (3) to dismiss the theft of services counts on the ground that the presumption created by section 165.15 of the Penal Law is unconstitutional.
The counts charged in the indictment arise out of the theft of approximately 3,391,000 cubic feet of gas from a Union Gas Company. The theft of gas was accomplished through bypasses, pieces of pipe attached to the gas company’s lines, which allow one who is not a gas customer to obtain gas by tapping gas company lines and receiving free service.
A New York Criminal Lawyer said the court has read the grand jury minutes and finds that the evidence adduced before the grand jury was legally sufficient and that there was reasonable cause to believe that he committed the crimes charged in each count.
The court ruled that, in People v. Cox, held that ” ‘where the property is stolen from the same owner and from the same place by a series of acts, if each taking is the result of a separate, independent impulse, each is a separate crime; but if the successive takings are all pursuant to a single, sustained, criminal impulse and in execution of a general fraudulent scheme, they together constitute a single larceny, regardless of the time which may elapse between each act’ “. However, the question of whether the series of acts constitutes one larceny or more than one is an issue of fact for the jury to determine.
A Westchester County Criminal Lawyer said he also seeks the dismissal of either the larceny or theft of services counts in the indictment on the grounds that they are inconsistent and cannot stand together in that gas, which is the subject of both offenses is defined as two different things, to wit: property and a service. Those counts charging a larceny state that the defendant “pursuant to a common scheme and plan, did steal property, to wit: a quantity of gas,”. The counts charging theft of services state that the defendant “did knowingly accept or receive the use or benefit of service, to wit: gas.” He argues that gas cannot be both “property” and a “service”. This court does not agree and finds no inconsistency in defining gas as “property” in one offense and as a “service” in another.
A Suffolk County Criminal Lawyer said section 155.05(1), of the Penal Law defines the offense of larceny and states that “(a) person steals property and commits a larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof.” “Property” is defined in section 155.00(1), of the Penal Law as “any money, personal property, real property, thing in action, evidence of debt or contract, or any article, substance or thing of value.”
A person is guilty of theft of services as defined by Penal Law section 165.15(6), when “he knowingly accepts or receives the use and benefit of service, including gas, steam or electricity service, which should pass through a meter but has been diverted therefrom, or which has been prevented from being correctly registered by a meter provided therefor, or which has been diverted from the pipes, wires or conductors of the supplier thereof.” Subdivision 8 of Penal Law section 155.00 defines “service” as “the supplying of commodities of a public utility nature such as gas, electricity, steam and water.”
The case of People v. McLaughlin, is applicable to the case at bar in its discussion of an indictment charging the crimes of larceny and theft of services, even though McLaughlin involved the tampering with an electric meter and the theft of electricity, not gas. The defendant in McLaughlin argued that the theft of services statute, a specific statutory provision, preempted the field, so that every case of meter tampering involves merely a theft of services, not a larceny under Article 155 of the Penal Law, a general statutory provision. The court found that the defendant had misconstrued the legislative intent and held it is only where two statutory provisions are in conflict, and one is general and the other specific, that the specific will control. The court stated: “there is no conflict at all here both provisions are in utter harmony. It is perfectly true that both provisions impose, in some areas, different punishments for the same acts, but this is hardly a conflict; rather it is a coalescence, and yet another canon is thereby called into play, wherever possible, all parts of a statute are to be read together, construed together, and harmonized with each other. Therefore, the larceny counts and the theft of services counts in the indictment are not inconsistent. The evidence adduced before the Grand Jury was sufficient to charge him with both of these offenses. That branch of the motion which seeks a dismissal of either the larceny count or the theft of services count is denied.
As to the issue of constitutionality, Penal Law, section 165.15, subds. 5 and 6 deal with the theft of a utility service. However, subd. 5 involves meter tampering with which we are not concerned. The theft of services in this case was allegedly accomplished directly from the gas lines. The meters which measured the gas service had been removed in both buildings prior to the hook-up of the by-pass. Therefore, the only applicable presumption is the one created under subd. 6 of section 165.15 which provides that: “A person is guilty of theft of services when: he knowingly accepts or receives the use and benefit of service, including gas, steam or electricity service, which should pass through a meter but has been diverted therefrom, or which has been prevented from being correctly registered by a meter provided therefor, or Which has been diverted from the pipes, wires or conductors of the supplier thereof “.
Subdivision 6 further provides that: “In any prosecution under this subdivision, proof that service has been intentionally diverted from passing through a meter, or has been intentionally prevented from being correctly registered by a meter provided therefor, or has been intentionally diverted from the pipes, wires or conductors of the supplier thereof, shall be presumptive evidence that the person who accepts or receives the use and benefit of such service has done so with knowledge of the condition so existing.”
The second half of subd. 6 contains a statutory presumption, which states that when there is evidence of tampering with utility lines, the presumption is that the one who receives the use and benefit of the service has done so With knowledge of the tampering. The offender, as owner of the two buildings in which the tampering was discovered, was indicted under this section. He does not deny that these bypasses were actually found, but he does deny personal knowledge of their existence. He contends that this presumption fails to meet the constitutional guidelines necessary to uphold a presumption and is a violation of due process and hence unconstitutional. At issue is the validity of this statute creating the presumption.
When the Penal Law was revised by the Laws of 1965, ch. 1030, the statute governing Theft of Utility Services was rewritten and the presumption under section 1431-a was omitted. However, a presumption was added to section 165.15 under subdivisions 5 and 6 by the Laws of 1976, ch. 768.
The present section 165.15, subd. 6, is so similar to 1431-a that the courts have employed similar reasoning in their determination of the constitutionality of the theft of services presumption. This presumption was reinstated when the Legislature recognized the difficulty of obtaining proof of actual tampering. “Such proof can be produced only in the rare instance where one is caught redhanded altering the electrical circuit to bypass a meter. It would be a travesty to hold that only in such a case could the Legislature prohibit substantial continuous profit by way of theft”. If tampering was to be effectively deterred then the presumption was both necessary and essential. “The crime of tampering with utility meters is rarely committed with witnesses present, but this section establishes the responsible party”. The presumption permits the inference to be drawn that the party who accepts the use and benefit of the service does so with knowledge that either the meters or lines providing the service were tampered with.
The offender alleges that the possibilities which arise from the established facts are numerous, therefore, no rational connection can exist. He claims a person having a grudge against him could tamper with the gas lines and then inform the utility of the bypass. He also claims that any of the tenants in the apartment houses are possible suspects. In addition, he contends that there was no evidence placing him at the scene of the crime or that he caused anyone else to commit the crime. He states that he was never caught “red-handed” and there is only the evidence of a bypass, not of the actual tampering. The statement attributed to the offender by the Union servicemen, would appear to negate any of these inferences.
Several New York courts, in recent decisions, have upheld the theft of services’ presumption as constitutional. In People v. Casteneda, the defendant was charged with the offense of theft of services under Penal Law 165.15, subdivision 6 in that the electric meter servicing his premises had been tampered with to register a lesser amount of electrical current than was actually consumed. Although there was no direct proof of the tampering, the court held that “it would seem to be illogical and contrary to experience to conclude that the meter tampering was done without the knowledge of the one benefited thereby. Applying any of the tests set forth by the courts, it seems clear that the presumption here under review passes muster and with room to spare”. People v. McLaughlin consolidated several cases of theft of services charging that the various defendants tampered with the electric meters so that electricity passed through these meters without proper measurement. The court upheld the presumption, relying on the reasoning set out in Eff-Ess, which held “that the meter tampering presumption ‘is an inevitable inference resulting from the fact that the subscriber is the only party who could possibly benefit from tampering with the meter'”. In People v. Mendez, the defendant was also charged with the offense of theft of services under subdivision 6 in that he knowingly accepted and received electrical service which should have passed through a meter but which was diverted therefrom. The court relied on the decision in People v. Casteneda, which upheld the constitutionality of the presumption.
The fact that the offender was never actually caught installing a bypass is irrelevant. That is the reason for the presumption in a case such as this. This statute was enacted to facilitate the prosecution in utility tampering cases where actual evidence of the act of tampering is almost impossible. If the presumption is upheld as constitutional then the statute permits the inference to be drawn that the owner of the building receiving the service had knowledge of the tampering. Actual, direct evidence is not needed. What is relevant in this case is that he did have knowledge of the tampering. The grand jury minutes disclose an alleged attempt by the offender to “bribe” a serviceman of the Union Gas Company if he did not report the bypass. This belies his claim of lack of knowledge and makes the rational connection between the presumed fact and the proved fact even easier to demonstrate.
The offender, argues that the presumption created by Penal Law section 165.15, subdivision 6 is unconstitutional because it shifts the burden of proof from the People to the defendant. He claims that when the evidence of a bypass is discovered the burden shifts to the defendant to come forward and explain his whereabouts. This is a misconception. A presumption merely provides a method whereby certain facts are deemed to be prima facie proof of other facts. The question of whether he had knowledge of the tampering “despite the presumption must still be proven by the prosecution beyond a reasonable doubt”.
Presumptions range from those known as conclusive presumptions to those known as permissive presumptions. Conclusive presumptions are those which describe basic value judgments, such as a defendant is presumed innocent until proven guilty or the presumption against suicide. A conclusive presumption is equivalent to a substantive rule of law which favors the party introducing it and acts to transfer the burden of proof, as does an affirmative defense, to the party raising it. Such a presumption cannot be rebutted. A permissive presumption is a rebuttable presumption. It places the burden upon the adversary to come forward with evidence to rebut the presumption, to negative the existence of the fact.
A permissive presumption or inference of fact has no effect on the ultimate burden of proof. The fundamental principle known as the “burden of proof” actually involves two separate concepts. These are the burden of persuasion and the burden of going forward with the evidence and the two must be distinguished. The burden of persuasion remains on the same party throughout the trial, it never shifts, the burden of going forward with the evidence does shift from one party to the other. A presumption, such as in this case, which operates to aid the prosecution does not affect the ultimate burden of proof. It operates in such a way that it places a burden on the defendant, if he so chooses, to come forward with evidence to the contrary. In other words, the burden of going forward with evidence to rebut the presumption is upon the defendant. In the case at bar, as a result of the presumption, the burden shifts to the defendant of going forward to explain away, destroy or rebut the inference to be drawn.
This burden of going forward is in no way related to the burden of persuasion. The burden of persuasion refers to the balancing of the evidence. It is the burden which is placed on the prosecution to persuade the trier of fact that the defendant is guilty. The burden of persuasion in a criminal case is to prove guilt beyond a reasonable doubt. This burden never shifts to the defense. The introduction of a presumption does not affect or change the burden of persuasion. ” ‘No matter how persuasive the evidence of guilt may seem to the court, a defendant does not carry the burden of disputing it, nor does his failure to offer evidence on an element of the crime change or satisfy the prosecutor’s burden.’
Thus, it is evident that the burden of proof and the burden of going forward are two separate and distinct concepts one remaining constant, the other changing and shifting as the circumstances may warrant. “Despite the clear distinction in principle and effect between the burden of proof and the burden of going forward with the evidence, the courts sometimes confuse the terms, using one in place of the other.” This is exactly what the court did in the Thomas case. It confused the burden of going forward with the evidence with the ultimate burden of proof.
If the presumption in this case did operate in such a way as to shift the burden of proof to the defendant, it would be unconstitutional. However, as the court held in Leyva, “it is the presence of a rational connection which prevents the burden of proof from shifting impermissibly to the defendant”. The purpose of the theft of services presumption is to infer that the one who accepted the service had knowledge of the tampering. This presumption merely forms Part of the prosecution’s prima facie case. It does not play any larger role in the prosecution’s case than any other facts offered. Either through evidence offered by the defendant, who has the burden of going forward, or by attacking the credibility of the prosecution’s witnesses, an alternate set of facts or inferences to be drawn from facts is presented to the jury, which has the ultimate burden of choosing between the two sets.
The presumption authorized by Penal Law section 165.15, subdivision 6, does not conclusively establish that the one who is receiving the service has knowledge of the tampering per se. It merely permits an inference to be drawn against the owner. It does not place any oppressive burden on him. He is merely called upon to come forward and explain the situation. Even if he cannot satisfactorily explain his role or non-role or falsely explains it, it is still for the jury to decide if the prosecution has satisfied its burden of persuasion in proving guilt beyond a reasonable doubt. The jury is not to be told that it must find the offender guilty if the prosecution establishes the fact of the tampering beyond a reasonable doubt; it is only to be told that it may infer the offender received the gas, with knowledge of the tampering and, therefore may find him guilty of theft of services.
The court finds that the presumption created by Penal Law, section 165.15, subdivision 6 is not unconstitutional.
Stephen Bilkis & Associates, with offices throughout New York, render legal services including cases involving grand larceny, shoplifting, criminal possession of stolen property and the likes through its Kings County Criminal Lawyers or its New York Petit Larceny Attorneys.