Judgment, Supreme Court, New York County (Myriam J. Altman, J.), rendered May 20, 1985, after jury trial, convicting appellant of grand larceny in the second degree, criminal possession of stolen property in the first degree and unauthorized use of a vehicle in the third degree, and imposing sentence thereon, is reversed, on the law, and as an exercise of discretion in the interest of justice, and the case is remanded for a new trial.
The essential facts in this case are undisputed. Appellant emigrated with his mother from Ecuador in 1980, at the age of 16. After graduating from high school, he began working full time at a jewelry import company while attending Hunter College. At the time of the incident appellant was 21 years of age, still employed full time, and attending Control Data Institute in midtown Manhattan where he studied computer programming.
On the evening of January 24, 1985, appellant, after finishing work, started school as usual at 6:00 p.m. At about 8:30 p.m. he and three fellow students took a taxi to the restaurant at 8th Avenue and 20th Street. At the restaurant appellant drank two "jumbo-sized” margaritas.
At about 9:45 p.m. appellant and his companions left the restaurant and hailed a yellow medallion cab driven by Claudio Adames. Mr. Adames pulled over and allowed three members of the group to enter his cab, but asked them to wait for [390]*390him for a few minutes while he purchased something to drink at a store in the vicinity. He left the cab with the motor running. Appellant immediately got behind the wheel and drove off. He testified at trial that he didn’t know why he did it, that he had no plans to keep the cab permanently, and in fact had no plans regarding it at all.
Appellant drove his companions back to school on 42nd Street, where they signed out on their attendance sheets, and he then drove home to his apartment in Queens. He testified that he lay down for a while, feeling drunk, and around midnight realized what he had done, and decided to drive back to Manhattan and to leave the cab parked in the vicinity of where he had taken it. On his way downtown from the 59th Street Bridge, at about 1:00 a.m., appellant lost control of the cab, and drove onto the sidewalk, causing no noticeable damage to the cab. Appellant panicked and ran from the cab, but two police officers riding in a van, who happened to see the incident, commanded him to halt. Appellant told the officers that he "stole” the cab. In response to their inquiry as to how he stole it, appellant said, "The guy left it running; the guy went in for a pack of cigarettes and left it running so I took it.” Both of the police officers noted that appellant had alcohol on his breath at the time of his arrest.
Penal Law § 155.35, as it read prior to the 1986 amendment raising the value threshold to $3,000, stated: "A person is guilty of grand larceny in the second degree when he steals property and when the value of the property exceeds one thousand five hundred dollars.” Penal Law § 155.05 (1), defining larceny, states as here pertinent: "A person steals property and commits 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.”
Penal Law § 155.00 (3) states: "To 'deprive’ another of property means (a) to withhold it or cause it to be withheld from him permanently or for so extended a period or under such circumstances that the major portion of its economic value or benefit is lost to him, or (b) to dispose of the property in such manner or under such circumstances as to render it unlikely that an owner will recover such property.” Penal Law § 155.00 (4) similarly provides as here pertinent that to "appropriate” property means "(a) to exercise control over it * * * permanently or for so extended a period or under such circumstances as to acquire the major portion of its economic value or benefit”.
[391]*391We find that the evidence presented a very close issue with respect to the necessary element of appellant’s intent to "deprive” or "appropriate” the cab with the permanence or for the extended period set forth in the relevant statutory provisions defining the elements of larceny. It is conceded that under the facts in this case, if appellant’s taking of the cab did not constitute a larceny, appellant would not be guilty of criminal possession of stolen property. In this regard we observe that there was no evidence of premeditation, or the use of a lookout, or possession of tools associated with car theft, or any suggestion that appellant intended to strip the cab of parts or to sell it under circumstances that would deprive the owner permanently or for an extended period of time of its use.
In the light of the evidence, which in our view presented a very close issue for the jury with respect to intent on the two felony counts, we reverse on account of significant prejudicial arguments raised by the Assistant District Attorney during summation. On several occasions the Assistant District Attorney presumed to instruct the jury on the law, and did so inaccurately or misleadingly in the context of the facts presented. He urged that if appellant did not intend to keep the cab, he could still be guilty of larceny and criminal possession of stolen property; that the jurors should not be intimidated by the law but should follow their common sense; that permanently depriving anybody of anything is not an included element of possession of stolen property; and that the appellant’s intent to benefit himself is the controlling standard.
On several occasions during cross-examination of the appellant, the Assistant District Attorney seemed to be attempting to confuse the issue of the appellant’s intent to keep the cab as it related to whether a larceny had occurred. Appellant readily admitted in response to leading questions that he "stole” the cab, while insisting that he never intended to keep it beyond a few hours, and that he was in the process of returning it when the accident occurred. During his summation, the Trial Assistant repeatedly and unfairly capitalized on the appellant’s answers as purportedly constituting binding admissions as to the appellant’s intent, thus foreclosing from the jury’s consideration the sole and determinative issue in the case. The following examples are illustrative:
"ada: The evidence shows you that it was stolen because he stole it. The cab was stolen property because he took it without permission or authority, and he knew what he was doing.
[392]*392"defense counsel: Objection.
"ada: He intended to benefit himself.
"defense counsel [probably the court]: The jury will evaluate the evidence.
"defense counsel: Your Honor, again, on the legal point, the district attorney is instructing the jury on the law.
"the court: I understand your objection.
"ada: The evidence shows that he impeded its recovery by taking it, driving it, by exercising control over it and using it; and even if you believe he was going down there to drop it off, he’s still impeding recovery of that car because no one is going to know where to find it * * *
"ada: He told you exactly that on cross-examination. You can have it read back to you that he knew it was stolen. "defense counsel: Objection. Objection.
"the court: Overruled.
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Judgment, Supreme Court, New York County (Myriam J. Altman, J.), rendered May 20, 1985, after jury trial, convicting appellant of grand larceny in the second degree, criminal possession of stolen property in the first degree and unauthorized use of a vehicle in the third degree, and imposing sentence thereon, is reversed, on the law, and as an exercise of discretion in the interest of justice, and the case is remanded for a new trial.
The essential facts in this case are undisputed. Appellant emigrated with his mother from Ecuador in 1980, at the age of 16. After graduating from high school, he began working full time at a jewelry import company while attending Hunter College. At the time of the incident appellant was 21 years of age, still employed full time, and attending Control Data Institute in midtown Manhattan where he studied computer programming.
On the evening of January 24, 1985, appellant, after finishing work, started school as usual at 6:00 p.m. At about 8:30 p.m. he and three fellow students took a taxi to the restaurant at 8th Avenue and 20th Street. At the restaurant appellant drank two "jumbo-sized” margaritas.
At about 9:45 p.m. appellant and his companions left the restaurant and hailed a yellow medallion cab driven by Claudio Adames. Mr. Adames pulled over and allowed three members of the group to enter his cab, but asked them to wait for [390]*390him for a few minutes while he purchased something to drink at a store in the vicinity. He left the cab with the motor running. Appellant immediately got behind the wheel and drove off. He testified at trial that he didn’t know why he did it, that he had no plans to keep the cab permanently, and in fact had no plans regarding it at all.
Appellant drove his companions back to school on 42nd Street, where they signed out on their attendance sheets, and he then drove home to his apartment in Queens. He testified that he lay down for a while, feeling drunk, and around midnight realized what he had done, and decided to drive back to Manhattan and to leave the cab parked in the vicinity of where he had taken it. On his way downtown from the 59th Street Bridge, at about 1:00 a.m., appellant lost control of the cab, and drove onto the sidewalk, causing no noticeable damage to the cab. Appellant panicked and ran from the cab, but two police officers riding in a van, who happened to see the incident, commanded him to halt. Appellant told the officers that he "stole” the cab. In response to their inquiry as to how he stole it, appellant said, "The guy left it running; the guy went in for a pack of cigarettes and left it running so I took it.” Both of the police officers noted that appellant had alcohol on his breath at the time of his arrest.
Penal Law § 155.35, as it read prior to the 1986 amendment raising the value threshold to $3,000, stated: "A person is guilty of grand larceny in the second degree when he steals property and when the value of the property exceeds one thousand five hundred dollars.” Penal Law § 155.05 (1), defining larceny, states as here pertinent: "A person steals property and commits 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.”
Penal Law § 155.00 (3) states: "To 'deprive’ another of property means (a) to withhold it or cause it to be withheld from him permanently or for so extended a period or under such circumstances that the major portion of its economic value or benefit is lost to him, or (b) to dispose of the property in such manner or under such circumstances as to render it unlikely that an owner will recover such property.” Penal Law § 155.00 (4) similarly provides as here pertinent that to "appropriate” property means "(a) to exercise control over it * * * permanently or for so extended a period or under such circumstances as to acquire the major portion of its economic value or benefit”.
[391]*391We find that the evidence presented a very close issue with respect to the necessary element of appellant’s intent to "deprive” or "appropriate” the cab with the permanence or for the extended period set forth in the relevant statutory provisions defining the elements of larceny. It is conceded that under the facts in this case, if appellant’s taking of the cab did not constitute a larceny, appellant would not be guilty of criminal possession of stolen property. In this regard we observe that there was no evidence of premeditation, or the use of a lookout, or possession of tools associated with car theft, or any suggestion that appellant intended to strip the cab of parts or to sell it under circumstances that would deprive the owner permanently or for an extended period of time of its use.
In the light of the evidence, which in our view presented a very close issue for the jury with respect to intent on the two felony counts, we reverse on account of significant prejudicial arguments raised by the Assistant District Attorney during summation. On several occasions the Assistant District Attorney presumed to instruct the jury on the law, and did so inaccurately or misleadingly in the context of the facts presented. He urged that if appellant did not intend to keep the cab, he could still be guilty of larceny and criminal possession of stolen property; that the jurors should not be intimidated by the law but should follow their common sense; that permanently depriving anybody of anything is not an included element of possession of stolen property; and that the appellant’s intent to benefit himself is the controlling standard.
On several occasions during cross-examination of the appellant, the Assistant District Attorney seemed to be attempting to confuse the issue of the appellant’s intent to keep the cab as it related to whether a larceny had occurred. Appellant readily admitted in response to leading questions that he "stole” the cab, while insisting that he never intended to keep it beyond a few hours, and that he was in the process of returning it when the accident occurred. During his summation, the Trial Assistant repeatedly and unfairly capitalized on the appellant’s answers as purportedly constituting binding admissions as to the appellant’s intent, thus foreclosing from the jury’s consideration the sole and determinative issue in the case. The following examples are illustrative:
"ada: The evidence shows you that it was stolen because he stole it. The cab was stolen property because he took it without permission or authority, and he knew what he was doing.
[392]*392"defense counsel: Objection.
"ada: He intended to benefit himself.
"defense counsel [probably the court]: The jury will evaluate the evidence.
"defense counsel: Your Honor, again, on the legal point, the district attorney is instructing the jury on the law.
"the court: I understand your objection.
"ada: The evidence shows that he impeded its recovery by taking it, driving it, by exercising control over it and using it; and even if you believe he was going down there to drop it off, he’s still impeding recovery of that car because no one is going to know where to find it * * *
"ada: He told you exactly that on cross-examination. You can have it read back to you that he knew it was stolen. "defense counsel: Objection. Objection.
"the court: Overruled. The jury’s evaluation of the testimony is what controls.
"defense counsel: I just object to the district attorney instructing the law.
"the court: I understand.
"ada: Even if he hadn’t admitted he knew it was stolen which he did, using your common sense and applying it to the evidence, you know that he knew it was stolen. After all, he stole it. This isn’t a case where he got the cab from somebody else who he wasn’t sure had any permission to have it. He, himself, kept it and used it that night. Obviously, anyone in his position would have known that cab was stolen just as he, himself, knew it and admitted that he knew it.
"You also know that he knew the cab was stolen because when he was stopped by the police, he tells two police officers, T stole it.’
"The defendant knew what he did. He knew he stole it
* * *
"ada: The defendant says, T stole the cab.’
"The defendant, himself, used the word 'steal’ not once but twice. Defense counsel wants you to believe that’s irrelevant. Well, analyze it. The defendant knows that he’s been caught in the act of possessing a cab which he, himself, stole.
"defense counsel: Objection.
"the court: Jury’s evaluation is what controls.”
As noted previously, these arguments and instructions, among others, to the jury by the Assistant District Attorney [393]*393were inaccurate and prejudicial, particularly when viewed in the context of questions asked by the jurors during deliberation reflecting their confusion on the legal elements of the crimes charged. The Trial Judge’s sustaining of many of defense counsel’s objections, and several admonitions that the jury should get the law from the court, were insufficient to undo the prejudice resulting from the Assistant District Attorney’s inappropriate legal instructions and misrepresentations of the evidence as it applied to the appellant’s intent on the felony counts.
In an apparent attempt to establish beyond question appellant’s intent to steal the car as defined in the Penal Law, and possibly to demonstrate that any inappropriate comments made during summation by the Assistant District Attorney should be treated as harmless error in the light of what they contend to be a very strong case, the People emphasize on this appeal appellant’s admissions during the trial, and his statements to the police at the time of his arrest, and shortly thereafter, that he "stole” the cab. They argue that while appellant "may not have been familiar with the legal definitions of Penal Law § 155.00, he was a 21-year-old student with two years of college, who surely knew the difference between 'steal’ and 'borrow’.” We find it a sufficient answer to this argument that one common definition of "steal” is simply "to take the property of another.” (See, e.g., Webster’s New Collegiate Dictionary.) That is precisely what appellant did, as conceded, and in addition without the consent of the owner, but that does not under any stretch of argument constitute an admission of stealing or larceny as defined in the Penal Law. (Compare, Penal Law § 165.05, defining unauthorized use of a vehicle in the third degree.) We also observe that in the People’s brief, the appellant’s taking of the cab is referred to as a "robbery”, as if to demonstrate the ease with which common words like "steal” and "robbery” can be misused even by the experts.
Although appellant’s guilt of the count charging unauthorized use of a vehicle in the third degree was clearly established by the evidence, and is undisputed on this appeal, we believe that the issues on retrial would be distorted if the jury could not consider the possiblity of his guilt on that count, and we accordingly reverse appellant’s conviction on that count as an exercise of discretion in the interest of justice. Concur— Sandler, J. P., Milonas and Rosenberger, JJ.