The People, Respondent,v.Sergey Aleynikov, Appellant.

Brief

N.Y.March 27, 2018

To be Argued by: KEVIN H. MARINO, ESQ. (Time Requested: 30 Minutes) APL-2017-00078 New York County Clerk’s Indictment No. 4447/12 Court of Appeals of the State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent, – against – SERGEY ALEYNIKOV, Defendant-Appellant. REPLY BRIEF FOR DEFENDANT-APPELLANT KEVIN H. MARINO JOHN D. TORTORELLA JOHN A. BOYLE EREZ J. DAVY MARINO, TORTORELLA & BOYLE, P.C. Attorneys for Defendant-Appellant 888 Seventh Avenue, 9th Floor New York, New York 10019 Tel.: (212) 307-3700 Fax: (212) 262-0050 – and – 437 Southern Boulevard Chatham, New Jersey 07928 Tel.: (973) 824-9300 Fax: (973) 824-8425 Date Completed: October 4, 2017 i TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii PRELIMINARY STATEMENT ............................................................................... 1 ARGUMENT ............................................................................................................. 5 I. COMPUTER DATA SAVED TO A HARD DRIVE IS NOT A “TANGIBLE REPRODUCTION OR REPRESENTATION” OF SUCH DATA. .................................................................................................. 5 A. Under The Plain Meaning Of “Tangible,” Saving Computer Data To A Hard Drive Does Not Transform It Into Tangible Property. ............ 5 B. Numerous Principles Of Construction Foreclose The People’s Interpretation Of The “Tangibility” Element. ............................................ 9 C. The Distinction Between Physical And Digital Copies Is A Sound One Drawn By The Legislature. ............................................................... 14 II. ALEYNIKOV’S SOURCE CODE COPYING DOES NOT CONSTITUTE “APPROPRIATION” AS DEFINED IN THE PENAL LAW. ............................................................................................................. 17 A. The Plain Language And History Of Penal Law § 155.00(4) Make Clear That Every “Appropriation” Requires Proof Of A “Deprivation.”........................................................................................... 17 B. The People’s Protestation Of The “Burden” Imposed Upon Them By The Statute’s Plain Language Is Not A Basis To Impose Criminal Liability And Underscores Why The “Appropriation” Element Was Modified In Subsequent Legislative Initiatives. ................ 26 III. ALEYNIKOV WAS ENTITLED TO A TRIAL ORDER OF DISMISSAL UNDER THE RULE OF LENITY. ........................................ 27 CONCLUSION ........................................................................................................ 29 ii TABLE OF AUTHORITIES Cases Almeida v. Holder, 588 F.3d 778 (2d Cir. 2009) .......................................................................... 21, 22 America Online, Inc. v. St. Paul Mercury Ins. Co., 207 F. Supp. 2d 459 (E.D. Va. 2002) .................................................................8, 9 Apple Computer, Inc. v. Formula Int’l, Inc., 594 F. Supp. 617 (C.D. Cal. 1984) ....................................................................... 10 Butts v. Commonwealth, 133 S.E. 764 (Va. 1926) ....................................................................................... 19 Cent. Bank & Trust v. Smith, 215 F. Supp. 3d 1226 (D. Wyo. 2016) ................................................................. 16 David L. Aldridge Co. v. Microsoft Corp., 995 F. Supp. 728 (S.D. Tex. 1998) ....................................................................... 10 Delk v. State, 1 So. 9 (Miss. 1886) ............................................................................................. 19 Enhanced Recovery Co., LLC v. Frady, No. 13-cv-1262, 2015 U.S. Dist. LEXIS 41652 (M.D. Fla. Mar. 31, 2015) ....... 16 In re Reinaldo O., 250 A.D.2d 502 (1st Dep’t 1998) .................................................................. 23, 24 Knight-Ridder Broadcasting Co. v. Greenberg, 70 N.Y.2d 151 (1987) ........................................................................................... 11 Lucent Tech., Inc. v. Bd. of Equalization, 193 Cal. Rptr. 3d 323 (App. Div. 2015) ................................................................. 5 McCourt v People, 64 N.Y. 583 (1876) ............................................................................................... 17 People v. Bayron, 66 N.Y.2d 77 (1985) ............................................................................................... 9 People v. Jennings 69 N.Y.2d 103 (1986) .............................................................................. 23, 24, 25 People v. Kent, 19 N.Y.3d 290 (2012) .................................................................................. 6, 7, 15 iii People v. Lipschitz, 120 Misc. 633 (Sup. Ct., N.Y. Cty., 1923) ........................................................... 19 People v. Litto, 8 N.Y.3d 692 (2007) ..................................................................................... passim People v. Phelps, 49 How. Pr. 437 (N.Y. Ct. Oyer & Terminer, Ulster Cty., 1877) ........................ 19 People v. Schulz, 67 N.Y.2d 144 (1986) ........................................................................................... 22 People v. Tansey, 156 Misc. 2d 233 (Sup. Ct., N.Y. Cty, 1992) ....................................................... 15 People v. Thompson, 26 N.Y.3d 678 (2016) ........................................................................................... 27 People v. Zinke, 76 N.Y.2d 8 (1990) ........................................................................................ 16, 18 Princeton Payment Solutions, LLC v. ACI Worldwide, Inc., No. 13-cv-852, 2014 U.S. Dist. LEXIS 114865 (E.D. Va. Aug. 15, 2014) ......... 10 RIHGA Int’l U.S.A. v. New York State Liquor Auth., 84 N.Y.2d 876 (1994) ........................................................................................... 17 Thyroff v. Nationwide Mutual Insurance Co., 8 N.Y.3d 283 (2007) ...........................................................................................2, 6 United States v. Agrawal, 726 F.3d 235 (2d Cir. 2013) .......................................................................... 3, 6, 7 United States v. Aleynikov, 676 F.3d 71 (2d Cir. 2012) ............................................................................ 2, 6, 7 United States v. Bottone, 365 F.2d 389 (2d Cir. 1966) ............................................................................ 3, 11 Statutes Conn. Gen. Stat. § 53a-119 ...................................................................................... 21 L. 1965, ch. 1030 .............................................................................................. 15, 22 National Stolen Property Act, 18 U.S.C. § 2314 ......................................................................................... 3, 7, 11 Penal Code of 1882 § 528 ........................................................................................ 20 iv Penal Law § 155.00 .................................................................................................. 18 Penal Law § 155.00(1) ...................................................................................... 14, 15 Penal Law § 155.00(3) ............................................................................................. 20 Penal Law § 155.00(4) ............................................................................................... 1 Penal Law § 155.05(1) ............................................................................................. 20 Penal Law § 156.30 ..................................................................................... 11, 13, 26 Penal Law § 165.07 .......................................................................................... passim Penal Law of 1909 § 1290 ....................................................................................... 20 Legislative Materials A5496A, A. Reg. Sess. 2017-2018 (N.Y. 2017) ................................................ 1, 27 Bill Jacket, L. 1986, ch. 514 .................................................................................... 14 Proposed New York Penal Law, (Study Bill, 1964 Senate Intro. 3918, 1964 Assembly Intro. 5376), including Staff Comments ....................................... 18, 20 S2406A, S. Reg. Sess. 2017-2018 (N.Y. 2017) .................................................. 1, 27 Journals & Treatises Donnino, Practice Commentary, McKinney’s Consol. Laws of N.Y., Penal Law § 155.00 .............................................................................................. 17 Oliver Wendell Holmes, The Common Law (1881) ......................................... 17, 19 Other Authorities Judy Godoy, Manhattan DA Frustrated With State’s Inertia On Law Updates, Law360, Aug. 10, 2017 ......................................................................... 17 Nick Stockton, Your Brain Doesn’t Contain Memories. It Is Memories, Wired, July 19, 2017 ............................................................................................ 10 Report of the New York State White Collar Crime Task Force (2013) ................................................................................ 2, 13, 26, 27 1 PRELIMINARY STATEMENT Everyone agrees that Aleynikov copied Goldman’s computer source code by digitally transferring it from one piece of computer hardware to another with the intent to use it. Legislation proposed in the wake of this case would criminalize that conduct by adopting special definitions of “obtain” and “appropriate” for computer- related material. Under that legislation, “obtain” would be re-defined to include “duplicating, recording, copying, downloading, uploading, or printing out” such material, and “appropriate” would be re-defined to include doing so “under such circumstances as to acquire the ability to use it . . . to the economic benefit of oneself.” A5496A; S2406A. But that legislation is not yet in effect. Instead, Aleynikov was convicted of violating the 1967 Unlawful Use statute, which proscribes making a “tangible reproduction or representation” of such material with the “intent to appropriate” its use, and incorporates the Penal Law’s existing definition of “appropriate”—to “exercise control . . . permanently” or for so long or under such circumstances as to “acquire the major portion of its economic value or benefit.” Penal Law § 165.07; § 155.00(4). As the trial judge who presided over the nearly month-long trial of this matter held, those elements simply were not proven in this case. The People’s contention to the contrary ignores the history of the Unlawful Use statute and the Revised Penal Law in which it became operative and disregards 2 settled principles of construction that govern this appeal, including that statutes must be interpreted in light of conditions existing when they were enacted; that subsequent legislative initiatives illuminate the deficiencies in pre-existing laws; and that the Legislature, not the courts, must bridge perceived gaps in a statute’s coverage. See People v. Litto, 8 N.Y.3d 692, 697, 706-07 (2007). Indeed, despite its centrality to this appeal, the People do not address Litto and dismiss relevant changes made to the Penal Law in 1986. Worse, they ignore changes to the Penal Law proposed in the 2013 Task Force Report although it explains precisely why Aleynikov’s source code copying is not covered by existing larceny laws (of which Unlawful Use is one) and recommends changing those laws to make them applicable to his conduct. In essence, the People contend that the Unlawful Use statute should be stretched to cover Aleynikov’s conduct because (i) he did something warranting criminal punishment; and (ii) the statute’s “tangibility” and traditional “appropriation” elements are archaic and would hamper future prosecutions. The People are mistaken, as the trial court rightly observed. (Appdx97-98.) The People state that “tangible” principally means having physical form or characteristics and concede that source code is intangible. Yet they fail to acknowledge that, as this Court held in Thyroff v. Nationwide Mutual Insurance Co., 8 N.Y.3d 283, 284-85, 289-93 (2007), and the Second Circuit held in United States v. Aleynikov, 676 F.3d 71 (2d Cir. 2012), and United States v. Agrawal, 726 F.3d 3 235, 251 (2d Cir. 2013), saving such data to a hard drive does not make it tangible. If it did, the tangibility requirement in the Unlawful Use statute would be superfluous; every “reproduction” would be tangible. Reading “tangible” out of the statute is especially problematic here because it is a restrictive term that has historically been used to circumscribe the kinds of property crimes cognizable at common law, and was specifically used in United States v. Bottone, 365 F.2d 389 (2d Cir. 1966)—which inspired the Unlawful Use statute—to limit the scope of criminal liability under the National Stolen Property Act (“NSPA”). That a digital duplication is not tangible is also confirmed by subsequent legislative undertakings eliminating the tangibility requirement when criminalizing the theft of computer data. The People do not claim they proved that Aleynikov intended to deprive Goldman of all or the major portion of the economic value or benefit of using its source code. Instead, they claim they proved that he intended to appropriate the source code’s use because, they contend, one can intend to appropriate the use of another’s property under a larceny statute without intending to deprive the owner of its use. That argument rests on the illogical premise that one can intend to exercise permanent control over the use of another’s property—i.e., to exercise control over it forever—without intending to exercise virtually permanent control over its use— i.e., control for long enough or in such a way as to acquire the major portion of its 4 value. That argument is refuted by the history the People ignore: New York’s larceny laws have always defined “appropriation” as an act that deprives an owner of its property, a definition codified in the Revised Penal Law in which the Unlawful Use statute became operative. That definition is also confirmed by recent legislative undertakings and proposals the People discard as irrelevant, in which the Legislature either modified or eliminated the need to prove deprivation when the property at issue is computer data. Such revisions would be unnecessary if “appropriation” meant what the People contend. Finally, the rule of lenity commands adopting a defendant’s plausible interpretation of a statute, and the trial court’s interpretations of the Unlawful Use statute’s tangibility and intent-to-appropriate elements are certainly plausible. Thus, any doubts about the proper interpretations of these elements must be resolved in Aleynikov’s favor. For these reasons, amplified below and in Aleynikov’s opening brief, the First Department’s judgment should be reversed. 5 ARGUMENT I. COMPUTER DATA SAVED TO A HARD DRIVE IS NOT A “TANGIBLE REPRODUCTION OR REPRESENTATION” OF SUCH DATA. A. Under The Plain Meaning Of “Tangible,” Saving Computer Data To A Hard Drive Does Not Transform It Into Tangible Property. The plain meaning of “tangible” is “capable of being touched or perceived by the senses,” and numerous courts—including this one—have found that saving data to a hard drive does not transform it into tangible property. (Appbrf25-26.) The People now contend1 that the word “tangible” is defined “principally in a way that connotes physical form or characteristics,” (Resbrf28), and do not dispute that computer source code is intangible property,2 as the Manhattan District Attorney has acknowledged. (Appbrf26-27.) But they refuse to acknowledge the conclusion their position compels: that just as source code is intangible, the act of saving it to a hard drive does not transform it into tangible property. 1 This position differs from that taken by the People in the trial court, where they contended that the word “tangible” meant “capable of being understood by the mind,” and successfully elicited a jury charge containing the metaphorical definition they now abjure. (Suppappdx1699, 1879, 1904, 2048.) 2 The People cite testimony to support their contention that “when source code is stored on a hard drive,” it is “‘physical,’” “‘takes up space,’” and that computer data can be visibly perceptible “‘in the aggregate’” when stored on a CD. (Resbrf26.) But as the People’s own statement acknowledges, the cited testimony at most concerns the physical properties of a hard drive, not the properties of the computer data itself. What must be tangible is the “reproduction or representation,” not the computer hardware on which it is stored. This is made clear by decisions such as Lucent Tech., Inc. v. Bd. of Equalization, 193 Cal. Rptr. 3d 323, 340 (App. Div. 2015), which explained that the act of physically altering computer media “does not thereby transmogrify the software itself into tangible personal property; the media is tangible, the software is not.” 6 This Court reached that conclusion in Thyroff, 8 N.Y.3d 283, and confirmed it in People v. Kent, 19 N.Y.3d 290 (2012); the Second Circuit recognized it in Aleynikov, 676 F.3d 71, and Agrawal, 726 F.3d 235. (Appbrf26-28, 31-33.) The People’s attempt to distinguish these cases fails. They argue that Thyroff did not hold that computer data saved to a hard drive is intangible and that, in all events, the Thyroff court did not analyze the tangibility of any “representation” of such data. (Resbrf37-38.) Not so. Thyroff specifically applied the conversion tort’s “merger test,” which analyzed whether there was a physical item that “represented” the intangible object. 8 N.Y.3d at 291-92 (emphasis added). Thus, Thyroff analyzed a common-law rule with historical roots and language similar to the law of larceny generally and the Unlawful Use statute in particular.3 In that analogous context, it found that computer files “stored on … computer hard drives” did not “strictly satisfy the merger test.” Id. at 285, 290. Thus, the Court concluded that a hard drive on which electronic data is stored is not a representation of that data. It was on that premise that this Court invoked its authority—absent in this context—to refashion this State’s law. Id. at 292. 3 As Thyroff noted, conversion is “an intentional act of ‘dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.’” Id. at 288, quoting Restatement (Second) of Torts, § 222A[1]. The serious interference to which the Restatement refers is the tort law equivalent of larceny’s requirement of a near permanent deprivation. 7 Next, the People read Kent to say that the “tangibility” of an image is proven by “‘its permanent placement on the defendant’s hard drive and his ability to access it later.’” (Resbrf39 (quoting Kent, 19 N.Y.3d at 302).) But the quoted passage clearly used the word “tangible” in a figurative sense, because the Court analyzed whether a defendant had “‘constructive possession’” of digital images. Kent, 19 N.Y.3d at 301. Such constructive possession, as Judge Graffeo’s concurrence made clear, turned on the user’s ability to “control” rather than physically possess those “intangible” computer images. Id. at 307-08 (Graffeo, J., concurring) (“Since child pornography on the Internet is digital in format, it is intangible in nature and therefore cannot be ‘possessed’ as that term is currently defined by the Penal Law.”). The People note that Aleynikov and Agrawal were federal NSPA prosecutions and argue that Aleynikov “did not have any occasion to address the question of whether the reproduction of the code defendant ultimately uploaded to the German server was tangible” because its analysis turned on the tangibility of the duplicated source code “at the time of its transfer across state lines.” (Resbrf39-40 (emphasis removed).) That argument overlooks the court’s analysis of the digital transmission as it was “uploaded to a server in Germany, then downloaded” to other devices. Aleynikov, 676 F.3d at 76. The court undertook that analysis to explain that “[t]he later storage of intangible property on a tangible medium does not transform the intangible property into a stolen good.” Id. at 78. Agrawal underscored that finding, 8 explaining that the “form” of the source code Aleynikov transferred “was intangible and remained so as it was transmitted from Goldman Sachs’s servers to a server in Germany and then to defendant’s own computer.” 726 F.3d at 253 (emphasis added). Nor can the People reconcile their position with the extensive authority holding that computer data is intangible. (Appbrf26&nn.6-7.) They concede that cases such as America Online, Inc. v. St. Paul Mercury Ins. Co., 207 F. Supp. 2d 459 (E.D. Va. 2002), describe computer data as “‘intangible.’” (Resbrf38.) They nonetheless read AOL to support their interpretation because it noted that computer data saved to a hard drive is “‘[s]imilar’” to “‘information written on a notepad, or the ideas recorded on a tape, or the design memorialized in a blueprint.’” (Resbrf38 (quoting AOL, 207 F. Supp. 2d at 468).) That “similarity” is conceptual, not linguistic; as the AOL court explained, unlike an item that can be touched or seen, “computer data and software is intangible” given “the ordinary meaning of the term ‘tangible.’” AOL, 207 F. Supp. 2d at 467-69. This linguistic distinction is what matters because, as the People acknowledge, statutory terms must be interpreted “‘“as they are commonly or ordinarily employed, unless there is something in the context or purpose of the [statute] which shows a contrary intention.”’” (Resbrf27- 28.) 9 Cases like AOL thus demonstrate that, while it is common to refer to items such as paper printouts as “tangible” reproductions or representations of computer data, it is not common to refer to a vessel such as a hard drive as a “tangible reproduction” of the data saved to it. The People’s construction is thus at odds with the statute’s plain language. B. Numerous Principles Of Construction Foreclose The People’s Interpretation Of The “Tangibility” Element. The People contend that the “tangible reproduction or representation” element is met any time material is copied “in a way that gives it physical presence on a computer or other electronic device.” (Resbrf33.) That interpretation not only contravenes the phrase’s plain language but also violates numerous principles of construction. Although courts cannot “read out of [a] statute [an] unambiguous legislative prerequisite,” People v. Bayron, 66 N.Y.2d 77, 82 (1985) (see Appbrf34 (collecting authority)), that is precisely what the People ask this Court to do. If the People’s position were adopted, every “reproduction” would be “tangible,” thereby rendering the word “tangible” superfluous. The People suggest that an intangible electronic representation could consist of data saved in a computer’s “volatile memory” as opposed to its permanent storage. (Resbrf33.) But saving data to a computer’s volatile memory (also known as random-access memory or “RAM”) also gives that 10 data physical presence on a computer; the difference between the two types of memory is temporal, not physical. One persists when power is turned off, the other does not. See, e.g., Princeton Payment Solutions, LLC v. ACI Worldwide, Inc., No. 13-cv-852, 2014 U.S. Dist. LEXIS 114865, at *27 n.15 (E.D. Va. Aug. 15, 2014) (noting that data stored on RAM “is stored electronically” and explaining that “the transient nature of RAM distinguishes it from fixed storage.”).4 The People thus proffer no example of a reproduction that would be “intangible” under their construction of the tangibility element, and none exists.5 The People’s attempt to read “tangible” out of the statute is especially problematic because a statute must be interpreted “‘in the light of conditions existing at the time of its passage and construed as the courts would have construed it soon after its passage.’” Litto, 8 N.Y.3d at 697. The People do not dispute that the 4 See also, e.g., David L. Aldridge Co. v. Microsoft Corp., 995 F. Supp. 728, 732 n.1 (S.D. Tex. 1998) (explaining that volatile and non-volatile memory are commonly referred to, respectively, as RAM and ROM (read-only memory), and that “[g]enerally speaking, both RAM and ROM are computer chips that store data electronically.”); Apple Computer, Inc. v. Formula Int’l, Inc., 594 F. Supp. 617, 622 (C.D. Cal. 1984) (explaining that RAM can be defined “as a computer component in which data and computer programs can be temporarily recorded.”). 5 The People similarly suggest that the word “tangible” could have been inserted to make clear that the statute does not proscribe the act of committing information “to memory.” (Resbrf33.) But the word “tangible” cannot serve that function because the act of memorization is not among the enumerated means of making a reproduction. And if it were, the proposed distinction would still fail because the act of committing data to memory physically alters the brain. See Nick Stockton, Your Brain Doesn’t Contain Memories. It Is Memories, Wired, July 19, 2017 (“Every sensory experience triggers changes in the molecules of your neurons, reshaping the way they connect to one another.”), available at https://www.wired.com/story/your-brain-is-memories/. So understood, one’s head containing memories is equivalent to a hard drive containing source code. 11 statute’s drafters were experts in criminal law who fully understood the traditional limitation of larceny to “tangible property.” (Appbrf36.) In fact, they concede that the statute was passed to “fill[] th[e] gap” in criminal liability exposed by the 1966 decision in Bottone, 365 F.2d 389, (Resbrf31), which specifically cabined criminal liability to the transportation of a “tangible object.” Id. at 393-94. The People’s observation that Bottone did not define the type of “‘physical object’” that could support liability, (Resbrf30), misses the point: Bottone used “tangible” to restrict the NSPA’s scope. The Unlawful Use statute’s drafters are presumed to have done the same. See Knight-Ridder Broadcasting Co. v. Greenberg, 70 N.Y.2d 151, 157 (1987) (“It is well settled that the legislative history of a particular enactment must be reviewed in light of the existing decisional law which the Legislature is presumed to be familiar with and to the extent it left it unchanged, that it accepted.”). When the Unlawful Use statute was enacted, computers were at a primitive stage of development and the Internet was decades away. (Appbrf38-39.) Nevertheless, the People claim that the Unlawful Use statute included “‘broad generalized language’” capacious enough to cover Internet uploads. (Resbrf35.) But the statute bears no resemblance to the broad, forward-looking formulations employed in other laws, such as the 1976 Copyright Act and the 1986 anti- duplication statute. See 17 U.S.C. § 101 (embracing copying methods “now known or later developed”); Penal Law § 156.30 (prohibition copying, reproducing, or 12 duplicating computer data “in any manner”). Rather, it used a limiting term— “tangible”—and confined liability to the “means” of reproduction enumerated in the statute. Penal Law § 165.07. One of those “means” is electronic reproduction, a phrase used at the time in the publishing industry. (Appbrf39-40.) Contrary to the People’s suggestion, Aleynikov has never argued that computers did not exist in 1967. (Resbrf35&n.12.) But when the Unlawful Use statute was passed, electronic reproductions were well understood to produce physical copies—that is, copies of the material itself that could actually be seen and touched—which is why that mode of copying was entirely consistent with the statute’s requirement of a tangible reproduction or representation. The People also overlook that “‘the course of legislation’” on a subject “‘illuminate[s] the intent of the legislature.’” Litto, 8 N.Y.3d at 697. The legislative efforts in the decades that followed the Revised Penal Law’s enactment were borne of the recognition that the existing statutory scheme—which included the Unlawful Use statute—“‘d[id] not address,’” or left prosecutors “‘nearly helpless’” in dealing with, computer-related crimes such as the unauthorized duplication or theft of “‘intangible property, such as computer code.’” (Appbrf40-42.) The resulting legislation and proposed legislation proscribed such conduct in a manner that dispensed with any “tangibility” requirement. (Appbrf41-42.) 13 Only by ignoring Litto and the content of these legislative initiatives can the People contend that the 1986 computer-crime bill and the recent cybercrime bills spurred by the Task Force Report are irrelevant because they “did not address” the Unlawful Use statute or concerned “entirely different” conduct. (Resbrf36, 41.) Litto teaches that the need for such legislation proves the deficiency of existing laws. If “tangible reproduction or representation” had been understood to describe a digital reproduction, “the Legislature would have had no reason to add” a statute, such as Penal Law § 156.30, that omitted any tangibility requirement. Litto, 8 N.Y.3d at 706. And contrary to the People’s contention, the 1986 computer-crime bill and the Task Force Report did address conduct that, according to the People, falls within the Unlawful Use statute’s scope. Aleynikov was charged with—and acquitted of— violating the 1986 anti-duplication statute based on the same conduct underlying his Unlawful Use charge and conviction, (Appdx99-100); and the Task Force Report specifically cited Aleynikov’s source code copying to exemplify the shortcomings of existing law, (Appbrf14-15 (quoting the Task Force Report’s example in full); Appdx97 (noting the “striking[]” example in the Task Force Report that “appears to be the People’s narrative of the Aleynikov case itself”)). To address those shortcomings, the Report proposed modifying the Penal Law where computer data is concerned to elide any mention of a tangible reproduction or representation and 14 instead to broadly proscribe “duplicating, recording, copying, downloading, uploading or printing out another’s computer data.” Without apparent irony, the People contend that “[o]ther sections” of the Penal Law “support the conclusion that computer data can be tangibly reproduced in electronic format.” (Resbrf31.) But the “other sections” the People cite did not exist at the time the Unlawful Use statute was enacted; they were added by the 1986 computer-crime bill the People dismiss as irrelevant. See Bill Jacket, L. 1986, ch. 514, at 35 (explaining that the bill amended Penal Law § 155.00(1) to include “computer data and computer programs” as property and created a “new Article 156” to criminalize computer-related misconduct). (See generally Appbrf12-13 (describing the 1986 computer-crime bill).) The People’s reading is thus both impermissibly anachronistic, Litto, 8 N.Y.3d at 697 (“a statute must be interpreted ‘in the light of conditions existing at the time of its passage and construed as the courts would have construed it soon after its passage’”), and self-defeating, because it emphasizes that the statutory scheme in which the Unlawful Use statute was enacted was not designed to apply to computer data. C. The Distinction Between Physical And Digital Copies Is A Sound One Drawn By The Legislature. Because their arguments cannot be reconciled with the statute’s text or established interpretive rules, the People’s argument reduces to the assertion that this 15 Court should abolish any distinction between physical and digital copies because it is “hard to imagine how logic would support such a limitation.” (Resbrf35; see also Resbrf34 (calling the distinction “nonsensical”).) As a threshold matter, there is nothing illogical about a statute that comports with the Revised Penal Law’s overarching goal to limit property crimes to “tangible” property. See Litto, 8 N.Y.3d at 707 (noting that any “gaps” in the criminal law were part of the legislative design and could not be bridged by the courts). Indeed, the distinction between tangible and intangible property inheres in the statutory scheme as a whole. See L. 1965, ch. 1030, § 10.00(7) (limiting the concept of “possession” to “tangible property”); id. § 155.00(1) (limiting larceny to the discrete items of physical property enumerated in the statute); Kent, 19 N.Y.3d at 307 (Graffeo, J., concurring) (noting that the statutory definition of “possess” is restricted to “‘tangible property,’” which does not include images that are “digital in format”); People v. Tansey, 156 Misc. 2d 233, 237 (Sup. Ct., N.Y. Cty, 1992) (“The statutory definition of ‘possess’ and ‘property,’ read together, clearly indicate that the Legislature, by virtue of its express command that only ‘tangible property’ can be possessed, has qualified the kind of property that can be the subject of a possessory crime, absent specific inclusion otherwise.”). Nor was it illogical for the Revised Penal Law’s drafters to place clear parameters around criminal liability—such as by imposing a “tangibility” requirement—where the line between criminal and civil liability was particularly 16 susceptible to blurring. See People v. Zinke, 76 N.Y.2d 8, 13 (1990) (noting the reluctance of the Revised Penal Law’s drafters “to elevate civil wrongs to the level of criminal larceny”); cf. Model Penal Code, note on sections 220.1-220.3, p.139 (Official Draft and Explanatory Notes 1985) (explaining that the Code’s limitation of certain forms of criminal mischief to “tangible property” “is necessary to avoid criminalizing business competition, breach of contract, and other economic practices that should be regulated, if at all, by civil remedies.”). This danger is particularly acute in the context of the alleged misappropriation of trade secrets, where competitors and prosecutors can seek to convert alleged breaches of “confidentiality and non-disclosure agreements,” (Resbrf13), into criminal violations. See, e.g., Cent. Bank & Trust v. Smith, 215 F. Supp. 3d 1226, 1229, 1237 (D. Wyo. 2016) (noting that “the alleged acts of the defendants,” which included the digital transfer of customer lists, “walk[ed] the thin line between white collar crime and business competition”); Enhanced Recovery Co., LLC v. Frady, No. 13-cv-1262, 2015 U.S. Dist. LEXIS 41652, at *20 (M.D. Fla. Mar. 31, 2015) (refusing to read a federal criminal statute such that it could be “violated any time an employee accesses information that the employer deems to be ‘confidential’”). Finally, while the lines of criminal liability drawn by the Unlawful Use statute’s drafters seem quaint to the People, it is the Legislature’s job “to update its provisions and restrictions.” RIHGA Int’l U.S.A. v. New York State Liquor Auth., 84 17 N.Y.2d 876, 879 (1994). (See generally Appbr43-44 (collecting authority).) And the People know it. That is why, even as they press their argument that the statute proscribes Aleynikov’s source code copying, they continue to urge the Legislature to “update the state’s antiquated criminal code.” Judy Godoy, Manhattan DA Frustrated With State’s Inertia On Law Updates, Law360, Aug. 10, 2017.6 II. ALEYNIKOV’S SOURCE CODE COPYING DOES NOT CONSTITUTE “APPROPRIATION” AS DEFINED IN THE PENAL LAW. A. The Plain Language And History Of Penal Law § 155.00(4) Make Clear That Every “Appropriation” Requires Proof Of A “Deprivation.” The People claim they can prove intent to “appropriate” the use of property without proving intent to deprive the owner of its use. But “appropriation” has always been defined as an act that “takes” something away or “deprives” another of property. (Appbrf46-47 (quoting, inter alia, People v. Lammerts, 164 N.Y. 137, 144 (1900); McCourt v. People, 64 N.Y. 583, 587 (1876); C. Donnino, Practice Commentary, McKinney’s Consol. Laws of N.Y., Penal Law § 155.00; and Oliver Wendell Holmes, The Common Law 70-74 (1881)). The drafters of the Revised Penal Law clarified but made no substantive change to this pre-existing understanding of “appropriation.” (Appbr47 (citing 1964 Proposed New York Penal 6 Available at https://www.law360.com/articles/953232/manhattan-da-frustrated-with-state-s- inertia-on-law-updates. 18 Law (Study Bill, 1964 Senate Intro. 3918, 1964 Assembly Intro. 5376), at 351).) The People ignore this history. But the undisputed lineage of Penal Law § 155.00, which dooms their position, is highly instructive on this appeal. See Zinke, 76 N.Y.2d at 11, 13 (1990) (explaining that “‘a proper interpretation of the past can assist us in understanding the technical rules of the crime” of larceny and holding that, against the historical “backdrop” analyzed by the Court, “the People’s arguments for criminal liability must fail.”). Rather than address the development of Penal Law § 155, the People embrace an ipse dixit analysis of the Unlawful Use statute and the definitions found in § 155.00. Thus, they claim that the notion that every appropriation involves a deprivation is “contradicted by the Penal Law itself, which defines ‘appropriate’ and ‘deprive’ separately.” (Resbrf49.) There is no contradiction. Larceny was traditionally conceived as an act that deprived an owner of property for the benefit of the thief. This conception was later broadened to include acts that deprived the owner of property, regardless of whether the thief benefited from the dispossession: The type of theft [at issue in larceny] is taking to one’s own use. It used to be, and sometimes still is, thought that the taking must be lucri causa, for the sake of some advantage to the thief. In such cases the owner is deprived of his property by the thief’s keeping it, not by its destruction, and the permanence of his loss can only be judged of beforehand by the intent to keep. The intent is therefore always necessary, and it is naturally stated in the form of a self-regarding intent. It was an advance on the 19 old precedents when it was decided that the intent to deprive the owner of his property was sufficient. As late as 1815 the English judges stood only six to five in favor of the proposition that it was larceny to take a horse intending to kill it for no other purpose than to destroy evidence against a friend…. Holmes, The Common Law 73-74.7 Thus, while every “appropriation” entailed a “deprivation,” not every “deprivation” qualified as an “appropriation.” Id. at 71-72 (explaining that larceny requires proof of an “intent to deprive [an] owner of his ownership” in property). New York larceny law reflects this evolution. Before this state enacted its first criminal code in 1882,8 courts in this State had already broadened larceny to include acts that “deprived” an owner of property regardless of whether the thief benefited from the deprivation. See People v. Phelps, 49 How. Pr. 437, 440-41 (N.Y. Ct. Oyer & Terminer, Ulster Cty., 1877) (holding that a defendant can be charged with larceny whenever “the owner has been deprived of a valuable thing, whether the thief can legally obtain any benefit from its possession or not. If he feloniously 7 See also, e.g., Butts v. Commonwealth, 133 S.E. 764, 768 (Va. 1926) (“‘It is not essential that the person taking shall intend to appropriate the same to his own use. It is sufficient that his purpose is to deprive the owner wholly of them. For although a taking lucre causa is larceny, a taking in order to deprive the owner of his property is equally so.’”); Delk v. State, 1 So. 9, 9 (Miss. 1886) (“The doctrine is well settled in this State that it is not necessary to constitute larceny that the taking should be lucri causa. A fraudulent taking and removal of the personal property of another with intent to wholly and permanently deprive the owner of the same is larceny.”). 8 See People v. Lipschitz, 120 Misc. 633, 635 (Sup. Ct., N.Y. Cty., 1923) (noting that common- law crimes “were only abolished by the Penal Code, which took effect in 1882.”). 20 deprives the owner of it, the offense is complete.”). This conception of larceny was subsequently codified in the penal codes of 1882 and 1909. See Penal Code of 1882 § 528 (stating that a larceny is committed when “[a] person who, with the intent to deprive or defraud the true owner of his property, or of the use and benefit thereof, or to appropriate the same to the use of the taker, or of any other person,” commits one of the acts specified in that provision); Penal Law of 1909 § 1290 (same). The Revised Penal Law’s drafters “substantially restate[d]” Penal Law § 1290’s definition of larceny, and included a new definitional section to “clarify several terms employed in the definition of larceny.” 1964 Proposed New York Penal Law (Study Bill, 1964 Senate Intro. 3918, 1964 Assembly Intro. 5376), at 351. Consistent with the drafters’ intent to “substantially restate” the existing definition of larceny, the Revised Penal Law defines larceny as an act in which one “takes, obtains, or withholds” property with the “intent to deprive another of property or to appropriate the same to himself or to a third person,” Penal Law § 155.05(1), and distinguishes an “appropriation” from a “deprivation” based on whether the taking benefitted the thief or a third person. Compare Penal Law § 155.00(4) (defining “appropriation” as an act that “acquire[s]” or “dispose[s]” of property for the “benefit” of the appropriator or a third person); with id. § 155.00(3) (defining a “deprivation” as an act that “withhold[s]” or “dispose[s]” of property in a way that causes the owner to lose its economic value or benefit or to “render it unlikely that 21 an owner will recover such property”). Thus, the drafters’ decision to separately codify the overlapping but non-identical concepts of “appropriation” and “deprivation” reflected their attempt to capture the law of larceny as it has long existed in this State and not, as the People suggest, to embrace the radical notion that a deprivation is not a core component of an appropriation. The Second Circuit confirmed that every “appropriation” necessarily entails a “deprivation” despite the existence of two separate definitions of the terms in Almeida v. Holder, 588 F.3d 778 (2d Cir. 2009). Almeida specifically noted that Connecticut’s larceny scheme—like the New York scheme on which it was modeled—defines “deprive” and “appropriate” differently, id. at 787, but nonetheless held that one cannot intend to “deprive” or “appropriate” property “‘without intending to deprive the owner of some of ‘the rights and benefits of ownership.’” Id. at 788. The People fail to explain why Almeida’s analysis does not compel the same conclusion here. They claim that Almeida is “unrelated” to this case and “unusual” because it involved a federal deportation proceeding. (Resbrf52- 53.) That is a classic distinction without a difference. In Almeida, the Second Circuit analyzed the same statutory language and the same question central to this appeal— i.e., whether every appropriation entails a deprivation. See id. at 789 (“We conclude that each of the intent provisions of Conn. Gen. Stat. § 53a-119 requires proof of a generic intent to deprive a person of some rights and benefits of property.”). 22 The People also argue that Almeida supports their position because it held that a thief commits larceny under Connecticut law by depriving an owner of the “right to exclusive possession” over property, such as by unlawfully obtaining access to cable service. (Resbrf53.) The observation is self-defeating for two reasons. First, the example proves the need for a deprivation: the thief can only obtain access by depriving the owner of the right to exclude him. That is a classic “‘zero-sum’” scenario. (Resbrf53.) Second, the Unlawful Use statute does not criminalize the intent to deprive an owner of the “right to exclusive use” of secret scientific material, but rather the intent to “appropriate” the “use” of such material. When, by contrast, the Penal Law’s drafters sought to criminalize the invasion of an owner’s exclusive right to use property or charge for its services, they used different formulations. See, e.g., L. 1965, ch. 1030, § 165.05(1) (stating that one is guilty of unauthorized use of a vehicle when he “takes, operates, exercises control over, rides in or otherwise uses” a vehicle, and not when he “appropriates” its “use”); L. 1965, ch. 1030, § 165.15(1), (3), (4), (6), (7) (proscribing the theft of various services by prohibiting the act of “obtaining” such services without authorization). The use of such distinct language in adjoining and contemporaneously enacted statutes “clearly indicates an intent that the two statutes be interpreted differently.” People v. Schulz, 67 N.Y.2d 144, 150 (1986). (See Appbrf50-51.) 23 The plain language of Penal Law § 155.00(4) and its history therefore establish that the People were required to prove that Aleynikov intended to deprive Goldman of the use of its code. The People unwittingly prove this point when they observe that the near-permanent branch of Penal Law § 155.00(4)—i.e., the portion that defines an appropriation in terms of an act that acquires “the major portion” of a property’s economic value or benefit—was intended to distinguish near-permanent larcenous takings from temporary non-larcenous ones. (Resbrf46.) This observation demonstrates that all “appropriations” must at least deprive a property owner of “the major portion” of the economic value of its property. This was made plain in People v. Jennings, which described the near-permanent branch of the larceny statute as the “virtual[]” equivalent of the “permanent” branch. 69 N.Y.2d 103, 118 (1986). Thus, the People had to prove that Aleynikov intended to acquire either (i) the major portion of the economic value or benefit use of the source code’s use; or (ii) the entirety of that code’s use, which is a more severe form of deprivation. They proved neither. The result is no different because the item at issue—here, “use” of Goldman’s source code—is divisible. This is demonstrated by In re Reinaldo O., 250 A.D.2d 502, 502 (1st Dep’t 1998), in which a defendant’s conviction for stealing a credit card was upheld based on evidence that he intended to use the credit line up to its full limit. While not disputing this holding, the People read Reinaldo O. to stand for 24 the proposition that “a defendant can intend to appropriate property that an owner still retains.” (Resbrf51.) That misses the point. When the property at issue is divisible, a defendant can always obtain some portion of that property while leaving the rest for its owner. But “some portion” is not enough. See Jennings, 69 N.Y.2d at 119 (holding that the People could not prove larceny of money entrusted to the defendants’ care by showing that the defendants intended to obtain “some portion of its economic benefit”). That is why Reinaldo O. focused on the People’s proof that the defendant’s acquisition of a credit-card number enabled him to “make purchases …. up to the credit limit.” 250 A.D.2d at 503 (emphasis added). Unlike in Reinaldo O., the People never proved that Aleynikov intended to deprive Goldman of any portion of the economic value or benefit of its source code’s use, much less “the major portion” of it. The People address this deficiency by noting that Aleynikov never intended “to return the copies” that he made. (Resbrf46- 48 (emphasis added).) But the Unlawful Use statute does not criminalize the intent to appropriate “copies” of secret scientific material; it proscribes the attempt to appropriate the use of that material. If the People were correct, an individual could be convicted of violating the Unlawful Use statute for making a copy of material deemed to be a trade secret—regardless of his ultimate purpose—so long as he never intended to return that copy. By the People’s lights, one who copies computer source code onto a flash drive in violation of company policy and puts it in his desk drawer 25 to use when the company’s servers go down would violate this criminal statute. Such an interpretation would impermissibly extend criminal liability far “beyond the fair scope of the statutory mandate.” Jennings, 69 N.Y.2d at 121 (internal quotation marks omitted). The People’s contention that one can intend to exercise permanent but not virtually permanent control is analogous to saying that a building can be the tallest building in a city without being one of the tallest buildings in the city. That argument falls of its own weight. It cannot fairly be denied that the type of control over property’s use that this Court has termed virtually permanent—i.e., sufficient to acquire the major portion of its value—is the functional equivalent of permanent control because it entails depriving the owner of most (though not all) of its value. Finding that the intent to appropriate the use of property exists when one intends to exercise permanent control over it or to acquire most of its value confirms that the crime of appropriation turns on the degree of deprivation—i.e., what the owner loses. In short, because every “appropriation” involves a “deprivation,” the People’s failure to prove that Aleynikov intended to deprive Goldman of at least the major portion of the economic value or benefit of its source code’s use means that the People did not prove the Unlawful Use statute’s scienter requirement. The trial court’s scholarly interpretation of the statute’s “appropriation” element, (Appdx73- 93), was thus entirely correct. 26 B. The People’s Protestation Of The “Burden” Imposed Upon Them By The Statute’s Plain Language Is Not A Basis To Impose Criminal Liability And Underscores Why The “Appropriation” Element Was Modified In Subsequent Legislative Initiatives. Bereft of legal support, the People argue that forcing them to prove “appropriation” as the law requires would mean that, in instances when the property at issue is divisible, they would carry the “additional burden” of proving that the “defendant intended to cause financial loss.” (Resbrf54.) But the burden to prove an “appropriation” is not “additional”; it is part-and-parcel of every appropriation case. Moreover, any “burden” imposed by the Unlawful Use statute’s “appropriation” element proceeds from its plain language. This fact is confirmed by subsequent legislative efforts to ease the burden of which the People complain when the property at issue consists of computer data. When the Legislature enacted the anti-duplication statute in 1986, it did not use the Unlawful Use statute’s “appropriation” formulation, but rather required the People to prove only the intent to deprive or appropriate “an economic value or benefit in excess of two thousand five hundred dollars.” Penal Law § 156.30(1). Even more telling are the recent Legislative efforts to amend this State’s cybercrime laws. Those efforts were prompted by the Task Force Report, which recommended a tailor-made definition of “appropriate” for purposes of computer data that resembles the definition advanced by the People on this appeal—i.e., the 27 ability “‘to obtain [computer data] under such circumstances as to acquire the ability to use it or dispose of it to the economic benefit of oneself or a third person or to the economic detriment or damage of an owner.’” (Appbrf55 (quoting Task Force Report, at D-1-2, and citing A5496A § 1(4); S2406A § 1(4).) If the existing definition of “appropriate” operated as the People claim, “the Legislature would have had no reason to add” such a provision. Litto, 8 N.Y.3d at 706. The People ignore this critical point, but it dooms their position. These recent Legislative initiatives also undercut the People’s “burden” arguments. That a statutory requirement imposes a burden on the prosecution does not relieve the People of that burden and subject a defendant to criminal liability. If the People believe that burden is undue, they should petition the Legislature to modify it. And that is precisely what they are doing. III. ALEYNIKOV WAS ENTITLED TO A TRIAL ORDER OF DISMISSAL UNDER THE RULE OF LENITY. The People do not dispute that, when two constructions of a statute are “‘plausible,’” the “‘one more favorable to the defendant should be adopted in accordance with the rule of lenity.’” (Appbrf55 (quoting People v. Thompson, 26 N.Y.3d 678, 687-88 (2016).) Instead, they dismiss the rule of lenity in a footnote, contending that it does not apply here because “[t]here is nothing ambiguous about 28 the Unlawful Use statute,” and Aleynikov has failed to “point to any ambiguity in it.” (Resbrf41n.14.) The People are confused. Aleynikov has demonstrated that the plain language of the statute reads unambiguously in his favor, and that this reading is confirmed by the statute’s legislative history, historical context, and numerous principles of construction. But if, as the People contend, the word “tangible” in the Unlawful Use statute means something other than “perceptible by touch;” “appropriate” means something other than “take from the owner;” and exercising “permanent control” means something less than exercising “virtually permanent control,” the statute as read by them is ambiguous. And because Aleynikov’s interpretation of those statutory terms and requirements is at a minimum plausible, the rule of lenity compels that his interpretation of those terms be adopted. CONCLUSION For the reasons set forth above and in Aleynikov’s opening brief, the First Department’s judgment should be reversed. Dated: October 4, 2017 Chatham, New Jersey Respectfully submitted, MARINO, TORTORELLA & BOYLE, P.C. By: Kevin H. Marino, Esq. 437 Southern Boulevard Chatham, New Jersey 07928-1488 (973) 824-9300 Attorneys for Defendant-Appellant Sergey Aleynikov 29 NEW YORK STATE COURT OF APPEALS CERTIFICATE OF COMPLIANCE I hereby certify pursuant to 22 N.Y.C.R.R. parts 500.1(j) and 500.13(c) that the foregoing brief was prepared on a computer using Microsoft Word. Type. A proportionally spaced typeface was used, as follows: Name of typeface: Times New Roman Point size: 14 Line spacing: Double Word Count. The total number of words in the brief, inclusive of point headings and footnotes, and exclusive of the pages containing the table of contents, table of authorities, proof of service, certificate of compliance, or any authorized addendum, is 6,998. Dated: October 4, 2017 Kevin H. Marino, Esq. 437 Southern Boulevard Chatham, New Jersey 07928-1488 (973) 824-9300 Attorneys for Defendant-Appellant Sergey Aleynikov ADDENDUM OF SUPPLEMENTAL AUTHORITIES TABLE OF CONTENTS DOCUMENT PAGE Excerpts from the Penal Code of 1882, L. 1881 CH. 676 ........................................ 1 Excerpts from the Penal Law of 1909, L. 1909 CH. 88. ............................................ 4 Excerpts from Oliver Wendell Holmes, Jr., THE COMMON LAW (1881) ................... 8 THE CODE Ot' TilE srrArrE OF NEW YORIC CllAP. 6?6. AN AC'l' 'l'O ESTABLISH A PENAL CODE. PASSED July 20, 1881; three-fifths being present. The People qf the State ~f' _New for!.', rtpreiitnted in JS(,,,,,,. ate ltnd Assembly, do enact as follows : PRELIMINARY PIWVISIONS. SECTION~, Tit lo of Codo. 2. lts effect. 3. Definition of " crime." 4. Division of crimes. 5. Definition of fp)ony. G. Definition of misdemeanor. 7. Rallle. 8, Objects of thn Penal Crn!P. !l. Conviction mubt precede punishment, 10. Jury to fin1l dcgruo of crimo. 11. General rnles of construction of th!ti act. 12. or sections declaring crimes punhlrnblc. 13. Pnnishnwnts, how determined. H. Pnnislmwnt of felonil'B when not fixc>co1nl degrcP. 532. l't•tit lnrccny. 53:J. G mnd lurceny in lirRt degree, how punished. 531. Id. : in bccond degree. 53;i, Petit lnrrcny n misdemcnnor. !i3G. Completrd uni~Rued inAtrumentR property. ll37. RrYPrunce of fixture, &c., lnrcrny. 538. l\t>eping wrecked goods, n misdemennf)r, 530. LoRt propPrty. 5·10. Bringi111! Flolen goods into !llnto, lnrceny. 541. l 'on veroion by trustee, lnrccny ; how punished, fi.12. Disposition of tine. 543. Heml~Rion of line. 541. V rrhnl fnlso prctenso not lnrceny. IJ l:; \T nl uo of cvidenc<' of debt, how nsccrtninecl. lilG. Id. ; pnssengcr ticket. 2□ T T T R a rn sam o s ru als b hab ¬ or l ex¬ din liv b l n § 52 pers pri ts - dv rti - u ate distribu riy>urty d dr rd r fo’ ui h d liver of h ch rs m r s no n itled dr cifi d e e ve o p¬ e is d er¬ b n c ny oll ti btaining money or THE CONSOIilDATED l i A W S of t h e STATE OF N E W TOKK P r e p a r e d p u r s u a n t to L a w s 1904 C h a p t e r 664 b y t h e B o a r d o f S t a t u t o r y C o n s o l i d a t i o n p a s s e d a t t h e ONE H U N D R E D AND T H I R T Y - S E C O N D S E S S I O N OF T H E LEGIS- L A T U R E BEGUN J A N U A R Y 6. 1909 . AND ENDED A P R I L 8 0 . 1909 , IN T H E CITY OF ALBANY AS AMENDED BY T H E L E G I S L A T U R E OF 1909 t o g e t h e r •with T H E P U B L I C S E R V I C E C O M M I S S I O N S L A W A N D T H E R A I L R O A D L A W a n d P u b l i s h e d b y the S t a t e u n d e r t he supe rv i s ion of t he B o a r d p u r s u a n t to L a w s 1909 C h a p t e r 4 5 8 OFFICIAL EDITION Vol. IV A L D A N Y J. R. LVON CXDMPANY. STATE PKINTBRS 4□ LI L Y R 0 i ion IS¬ 0, 0 B 3 . . wit IS li I mm VV 1 ■�( Ha B B Y OMPAN , RI E 1 909 (S 3 3/9/ / / Pursuant to chapter 458 of the Laws of 1909, I, Samuel S. Kocnig, Secretary of State, certify that the CoiiPolidated Laws herein and the amendments thereto are a correct transcript of the text of the original laws and of the whole thereof and may be read in evidence from this volume. SAMUEL S. KOENIG, Secretary of State of the State of New York. September 1, 1909. 5□ .r>8 0 T, e ns li tary f l f l te f Yor 2696 CONSOLIDATED LAWS fine of not less than twenty dollars nor more than fifty dollars, and imprisonment for not less than ten days nor more than thirty days in the jail of the county wherein such conviction is had, or by both such fine and imprisonment. A R T I C L E 122 Iiarceny Section 1290. Larceny defined. 1291. Severance of fixture from realty, larceny. 1292. Completed unissued instruments, property. 1293. Obtaining money or property by fraudulent draft 1293-a. Unauthorized use of vehicles. 1294. Grand larceny in first degree. 1295. Grand larceny in first degree; how punished. 1296. Grand larceny in second degree. 1297. Grand larceny in second degree; how punished. 1298. Petit larceny defined. 1299. Petit larceny a misdemeanor. 1300. Appropriating lost property. 1301. Bringing stolen goods into state, larceny. 1302. Conversion of property held in trust or by virtue of oflice, larceny; how punished. 1303. Value of stolen evidence of debt, how ascertained. 1304. Value of stolen passage ticket, how ascertained. 1305. Value of other stolen articles, how ascertained. 1306. Claim of title a ground of defense. 1307. Intent to restore property no defense. 1308. Buying or receiving stolen or wrongfully acquired property. 1309. Averment and proof of conviction of principal not necessary. 1310. Conversion of materials furnished to a person for purpose of being manufactured. § 1 2 9 0 . L a r c e n y def ined. A person who, with the intent to deprive or defraud the true owner of his property, or of the use and benefit thereof, or to appropriate the same to the use of the taker, or of any other person: 1. Takes from the possession of the true owner, or of any other person; or obtains from such possession by color or aid of fraudulent or false representation or pretense, or of any false token or writing; or secretes, withholds, or appropriates to his own use, or that of any person other than the true owner, any money, personal property, thing in action, evidence of debt or contract, or article of value of any kind; or, 2. Having in his possession, custody, or control, as a bailee, servant, attorney, agent, clerk, trustee, or oflBcer of any person, 6□ Bu i i 1 L d fi fi , l . t . l t draft. i l . f . i t i . . . i l f ll f perso ho, it t e i t t t ri r fr t tr r f i t , t s n t f r t, fi P E N A L LAW 269^ association, or corporation, or as a public oflScer, or as a person authorized by agreement, or by competent authority, to hold or take such possession, custody, or control, any money, property, evidence of debt or contract, article of value of any nature, or thing in action or possession, appropriates the same to his own use, or that of any other person other than the true owner or person entitled to the benefit thereof. Steals such property, and is guilty of larceny. Hereafter it shall not be a defense to a prosecution for larceny, or for an attempt or for conspiracy to commit the same, or for being accessory thereto, that the purpose for which the owner was induced by color or aid of fraudulent or false representation or pretense, or of any false token or writing, to part with his property or the possession thereof was illegal, immoral or unworthy. § 1291. Severance of fixture from realty, larceny. All the provisions of this article apply to cases where the thing taken is a fixture or part of the realty, or any growing tree, plant, or produce, and is severed at the time of the taking, in the same manner as if the thing had been severed by another person at a previous time. § 1292. Completed unissued instruments, property. All the provisions of this article, and sections four hundred and forty-two and nine hundred and forty-seven of this chapter apply to cases where the property taken is an instrument for the pay- ment of money, an evidence of debt, a public security, or a passag'j ticket, completed and ready to be issued or delivered, although the same has never been issued or delivered by the maker thereof to any person as a purchaser or owner. § 1293. Obtaining money or property by fraudu- l e n t d r a f t . A person who wilfully, with intent to defraud, by color or aid of a check or draft, or order for the payment of money or the delivery of property, when such person knows that the drawer or maker thereof is not entitled to draw on the drawee for the sum specified therein, or to order the payment of the amount, or delivery of the property, although no express repre- sentation is made in reference thereto, obtains from another any money or pro^jcrty, is guilty of stealing the same and punishable accordingly. § 1293-a. Unauthorized use of vehicles. Any chauf- feur or other person who without the consent of the owner shall take, or cause to be taken from a garage, stable, or other building or place an automobile or motor vehicle, and operate or drive or cause the same to be operated or driven for his own profit, use or purpose, steals the same and is guilty of larceny and shall be punishable accordingly, (Added hy L, 1909, ch. 614. in effect September 1, 1909.) 7□ G 7 fi n t , t r t t . . fix larce . ti l l t ere t fi t r lt , r r i t i , t r . ti l , ti t l t ¬ , e li , t t . . fraudu¬ , , r ft, t 1 , t t t i , t t , , re¬ pe l hauf¬ , . ed b . . , ff t te ber 1 THE COMMON LAW BY O. W. HOLMES, Jr. BOSTON: LITTLE, BROWN, AND COMPANY 1881 8□ . . ES, R. *. N: , N, GoogleDigitized by 70 THE COMMON LAW. course of nature. It is just as impossible that that bullet under those circumstances should hit that man, as to pick an empty pocket. But there is no difficulty in saying that such an act under such circumstances is so dangerous, so far as the possibility of human foresight is concerned, that it should be punished. No one can absolutely know, though many would be pretty sure, exactly where the bullet will strike ; and if the harm is done, it is a very great harm. If a man fires at a block, no harm can pos sibly ensue, and no theft can be committed in an empty pocket, besides that the harm of successful theft is less than that of murder. Yet it might be said that even such things as those should be punished, in order to make dis couragement broad enough and easy to understand. There remain to be considered certain substantive crimes, which differ in very important ways from murder and the like, and for the explanation of which the foregoing analysis of intent in criminal attempts and analogous misdemeanors will be found of service. The type of these is larceny. Under this name acts are punished which of themselves would not be sufficient to accomplish the evil which the law seeks to prevent, and which are treated as equally criminal, whether the evil has been accomplished or not. Murder, manslaughter, and arson, on the other hand, are not committed unless the evil is accomplished, and they all consist of acts the tendency of which under the surrounding circumstances is to hurt or destroy person or property by the mere working of natural laws. In larceny the consequences immediately flowing from the act are generally exhausted with little or no harm to the owner. Goods are removed from his possession by 9□ . r t r . t po si l t t ll t h rcu st i t an, pt cket. t c rcu st er us, ssi il t r , t i . l t , h a oul t , t her ll ill ik f m e, . a r l , ¬ e, i t pt cket, m s l h urder. et i t h n h i , in a s¬ ag e t erst . er e i t t es, hi ort t a s rom ur er i , l t hi e l si i i l tem t i eanor ill o i . y a . nder t i hi he s l oul t t pli il hi aw ent, hi re e al i al, het r il pli t. urder, anslaughter, , , t mi t l il plis ed, h si t t end hi r rou rcu st rt o r er or i t l a s. arcen ediat l lo rom t eral s it tl ner. oods e rom i s GoogleDigitized by THE CRIMINAL LAW. 71 trespass, and that is all, when the crime is complete. But they must be permanently kept from him before the harm is done which the law seeks to prevent. A momentary loss of possession is not what has been guarded against with such severe penalties. What the law means to pre vent is the loss of it wholly and forever, as is shown by the fact that it is not larceny to take for a temporary use with out intending to deprive the owner of his property. If then the law punishes the mere act of taking, it punishes an act which will not of itself produce the evil effect sought to be prevented, and punishes it before that effect has in any way come to pass. The reason is plain enough. The law cannot wait until the property has been used up or destroyed in other hands than the owner's, or until the owner has died, in order to make sure that the harm which it seeks to prevent has been done. And for the same reason it cannot confine itself to acts likely to do that harm. For the harm of permanent loss of property will not follow from the act of taking, but only from the series of acts which constitute re moving and keeping the property after it has been taken. After these preliminaries, the bearing of intent upon the crime is easily seen. According to Mr. Bishop, larceny is " the taking and re moving, by trespass, of personal property which the tres passer knows to belong either generally or specially to another, with the intent to deprive such owner of his owner ship therein ; and perhaps it should be added, for the sake of some advantage to the trespasser, — a proposition on which the decisions are not harmonious." 1 There must be an intent to deprive such owner of his 1 2 Bishop, Crim. Law, § 758 (6th ed.). 10□ . re s, ll, h im plete. t h ust anentl t rom m hi a ent. o entar t hat i t it nalti s. hat aw ea s e¬ t holl r, ho re t arcen a e r i h¬ t inten n r ner i ert . h aw i er , i hi ill t ts f i t t , i h n o ss. h. a t ait til er ro ner’s, til ner , a t m hi t e. a t f ts t ik t . r a e t r ill t low rom t , t rom t hi sti e¬ ovi r . ft l i ari s, t im . ccor i r. i p, arce “ ¬ oving, re ss, al ert hi res¬ s eral i l t er, it t r ner i ¬ e , o t re r, — osithi i t onious.” 1 er ust r ner i 1 i , ri . , $ .). GoogleDigitized by 72 THE COMMON LAW. ownership therein, it is said. But why? Is it because the law is more anxious not to put a man in prison for stealing unless he is actually wicked, than it is not to hang him for killing another ? That can hardly be. The true answer is, that the intent is an index to the external event which probably would have happened, and that, if the law is to punish at all, it must, in this case, go on probabilities, not on accomplished facts. The analogy to the manner of dealing with attempts is plain. Theft may be called an attempt to permanently deprive a man of his property, which is punished with the same severity whether successful or not. If theft can rightly be con sidered in this way, intent must play the same part as in other attempts. An act which does not fully accomplish the prohibited result may be made wrongful by evidence that but for some interference it would have been followed by other acts co-ordinated with it to produce that result. This can only be shown by showing intent. In theft the intent to deprive the owner of his property establishes that the thief would have retained, or would not have taken steps to restore, the stolen goods. Nor would it matter that the thief afterwards changed his mind and returned the goods. From the point of view of attempt, the crime was already complete when the property was carried off. It may be objected to this view, that, if intent is only a makeshift which from a practical necessity takes the place of actual deprivation, it oug'it not to be required where the actual deprivation is wholly accomplished, provided the same criminal act produces the whole effect. Suppose, for instance, that by one and the same motion a man seizes and backs another's horse over a precipice. The whole evil which the law seeks to prevent is the natural and manifestly 11□ . ners i i , . t ? aw or i t t a so e in l l i , h t im lin t t . n t l t hi oul ed, t t, if aw i ll, ust, , r babiliti s, t pli t . l anner l n it tem t l i . eft a e tem t anentl r a i ert , hi i it a ri het l t. g n¬ id e ay, ust a rt i te pts. hi t pli i i e l a a r gf l d t o nterferen l ollow e i lt. i ho h i t. n h e r a sh h h ef l a n , l t ak ste , h tole s. r l att th h ef terw i eturne th s. om h i ew te t, h im read plet h a ie . a j , t, t l akeshift hi rom r ti l essi l l ri ati , ght t i her l ri t holl plis ed, i l t hol t. pose, , t a oti a t er’ r r i i . hol il hi aw t t r l anifestl ru GoogleDigitized by THE CRIMINAL LAW. 73 certain consequence of the act under the known circumstan ces. In such a case, if the law of larceny is consistent with the theories here maintained, the act should be passed upon according to its tendency, and the actual intent of the wrong-doer not in any way considered. Yet it is possi ble, to say the least, that even in such a case the intent would make all the difference. I assume that the act was without excuse and wrongful, and that it would have amounted to larceny, if done for the purpose of depriving the owner of his horse. Nevertheless, if it was done for the sake of an experiment, and without actual foresight of the destruction, or evil design against the owner, the tres passer might not be held a thief. The inconsistency, if there is one, seems to be explained by the way in which the law has grown. The distinctions of the common law as to theft are not those of a broad theory of legislation ; they are highly technical, and very largely dependent upon history for explanation.1 The type of theft is taking to one's own use.2 It used to be, and sometimes still is, thought that the taking must be lucri causa, for the sake of some advantage to the thief. In such cases the owner is deprived of his property by the thiefs keeping it, not by its destruction, and the perma nence of his loss can only be judged of beforehand by the intent to keep. The intent is therefore always necessary, and it is naturally stated in the form of a self-regard ing intent. It was an advance on the old precedents when it was decided that the intent to deprive the owner of his property was sufficient. As late as 1815 the Eng lish judges stood only six to five in favor of the proposition 1 Cf. Stephen, General View of Criminal Law of England, 49 el seq. * Cf. Stephen, General View, 49-52 ; 2 East, P. C. 553. 12□ . t r rcu - , aw arcen si t it r aint i , t l e , l t r g- er t a si r . et ¬ l , t, t t oul a . su t t as it t rongful, t oul ount , r ri ner i rse. everthele s, as eri ent, it t t al t st cti , il i st ner, es¬ s r i ht t l i f. n si , h , ee l a hi aw n. in io o aw t h h e io ical, a t l ati . a n e’ . , et , h t a ust i s , o t i f. ner v i r t t t , rma¬ o eh . t w ss r , t r l ate orm f-regard¬ n t. as t as t r ner r a f t. s g¬ is too iv si o f. , e eral i ri i al gl , t t . * f. , e er l i , 6 ast, . . 6 . GoogleDigitized by 74 THE COMMON LAW. that it was larceny to take a horse intending to kill it for no other purpose than to destroy evidence against a friend.1 Even that case, however, did not do away with the univer sality of intent as a test, for the destruction followed the taking, and it is an ancient rule that the criminality of the act must be determined by the state of things at the time of the taking, and not afterwards. Whether the law of larceny would follow what seems to be the general princi ple of criminal law, or would be held back by tradition, could only be decided by a case like that supposed above, where the same act accomplishes both taking and destruc tion. As has been suggested already, tradition might very possibly prevail. Another crime in which the peculiarities noticed in lar ceny are still more clearly marked, and at the same time more easily explained, is burglary. It is defined as break ing and entering any dwelling-house by night with intent to commit a felony therein.2 The object of punishing such a breaking and entering is not to prevent trespasses, even when committed by night, but only such trespasses as are the first step to wrongs of a greater magnitude, like robbery or murder.3 In this case the function of intent when proved appears more clearly than in theft, but it is precisely similar. It is an index to the probability of certain future acts which the law seeks to prevent. And here the law gives evidence that this is the true explanation. For if the apprehended act did follow, then it is no longer neces sary to allege that the breaking and entering was with that intent. An indictment for burglary which charges that 1 Rex v. Cabbage, Rnss. & Ry. 292. 1 Cf. 4 Bl. Comm. 224 ; Steph. Dig. Crim. Law, Arts. 316, 319. • Cf. 4 Bl. Comm. 227, 228. 13□ . as arce r en ill r i st e . t , ever, t it ¬ t t, t o low , i t t i ali t ust erm im , t er r s. hether aw arcen oul low hat ee er l n ¬ i i l a , oul i , ik e, her a pli t a n ruc¬ i . s s , ra io i t s i ail. not er im hi culiarit t ar¬ or arked, a im or l , r l r . n ak¬ n n ell t it it elo 9 j t i t t t re s, mi t i t, t l res e r s t agnit de, ik urder.8 o t he r or h ft, t i il r. n abili t hi a r ent. r a t l ati . r t o , r ¬ e t t as it t t. tm t r l hi r s t 1 . ge, u s. y. . * f. l. . . i . ri . , rta. 8 «, 8 . « f. 4 l. o . 227, 228. GoogleDigitized by