High court tosses MetroCard theft charge

ALBANY -- Score one for the subway swiper.

New York's highest court Tuesday overturned larceny charges against a man who used his "unlimited ride" subway card to swipe others through the turnstiles for a fee. But in doing so, the Court of Appeals said the behavior was "decidedly criminal in nature" and left open the possibility that prosecutors could have been successful if Joseph Hightower had been charged differently.

Hightower had been charged with a misdemeanor for making a profit off his MetroCard. A transit cop observed Hightower at the West 34th Street and Sixth Avenue station in Manhattan in February 2009, standing by a turnstile, accepting a sum of money from other passengers, then swiping them through.

Authorities could not say how much money Hightower received per ride.

The Manhattan district attorney's office charged Hightower, a New Jersey resident, with petty larceny and unauthorized sale of transportation services. Prosecutors said Hightower's action deprived the agency of business.

Hightower pleaded guilty to the larceny charge and served one day in jail.

However, his lawyer later asked to have the charge voided altogether, claiming that Hightower never actually stole any "property" from the transit authority and, therefore, didn't commit larceny.

Tuesday, the State Court of Appeals agreed in a 7-0 decision. The judges said that although the police had "reasonable cause" to believe Hightower "was engaged in the unlawful sale" of subway services, the larceny charge was "jurisdictionally defective."

Writing for the court, Chief Judge Jonathan Lippman said: "The authority was not deprived of the unknown amount of money that [Hightower] accepted from the subway rider because it never owned the funds. Accordingly, there is no basis upon which the petit larceny charge in the accusatory instrument can be upheld."

The decision overturned previous decisions by two lower courts.

In the written opinion, Lippman might have hinted that the wrong charge was brought against Hightower. He made a point of saying that while the larceny charge cannot be upheld, the court did not address the applicability of "theft of general services" charge.

Hightower's lawyer, Adrienne Hale, said the ruling was important because it clears his name, even though he had already served time. She added that it has "widespread applicability" to how such future cases might be handled.

The Manhattan district attorney's office declined to comment.