People v. Weg

Citation: People v. Weg, 113 Misc.2d 1017, 450 N.Y.S.2d 957 (N.Y.City Crim. Ct. 1982).(full-text)

Factual Background
The defendant was charged with a misdemeanor of theft of services allegedly committed by using his employer’s (the Board of Education of the City of New York) computer for his own personal benefit without permission. The complaint alleges that the defendant had intent to derive a commercial benefit to himself, diverted the use of said computer equipment to himself by using the computer the computer to record and retrieve data for his own personal benefit. The defendant moved to dismiss the information based on various grounds including for failure to state a crime.

Criminal Court Proceedings
Under McKinney's Penal Law §165.15(8), a person is guilty of theft of service when obtaining or having control over labor in the employ of another person, or of business, commercial or industrial equipment or facilities of another person, knowing that he is not entitled to the use thereof, and with intent to derive a commercial or other substantial benefit for himself or a third person, he uses or diverts to the use of himself or a third person such labor, equipment or facilities.” (Emphasis supplied).

Based on the statutory language and context and legislative purpose, the statute was intended to apply only to unauthorized use of equipment that is offered for use as a service in a commercial setting, such as for lease or hire, and was not designed to make it a crime for public or private employee to use his employer’s internal office equipment without permission. A computer is considered “business, industrial, or commercial” equipment when it is used for profit in trade, commerce, or in manufacturing. This does not include when a computer is used internally by a governmental agency as an administrative tool. The board of education was a public agency, not a private business, and its computer was not rented to outsiders for a fee. The computer was not “business equipment” within the meaning of the statute prohibiting theft of services. Thus, the defendant did not commit theft of service by using his employer’s computer for his own personal benefit without permission.

The information charging defendant with theft of services was defective because it did not allege element of “business, commercial or industrial equipment” and failed to allege any facts supporting allegation relating to element of intent to derive a “commercial benefit”.