CJI2d[NY] Penal Law § 165.00(1)(a)

The (specify) count is Misapplication of Property.

Under our law, a person is guilty of Misapplication of Property when, knowingly possessing personal property of another pursuant to an agreement that the property will be returned to the owner at a future time, that person loans [or leases] [or pledges] [or pawns] [or encumbers] such property without the consent of the owner in such a manner as to create a risk that the owner will not be able to recover it or will suffer pecuniary loss.

[NOTE: Add if the statutory defense is raised:

It is a defense to this charge that, at the time the prosecution was commenced, (a) the defendant had recovered possession of the property, unencumbered as a result of the unlawful disposition, and (b) the owner had suffered no material economic loss as a result of the unlawful disposition.]¹

The following terms used in that definition have a special meaning:

A person KNOWINGLY possesses personal property of another pursuant to an agreement that the property will be returned to the owner at a future time when that person is aware that he or she possesses the property of another pursuant to such an agreement.²

POSSESS means to have physical possession or otherwise to exercise dominion or control over tangible property.³

An OWNER means a person who has a right to possession of the property which is superior to that of the person who possesses such property by virtue of the agreement.⁴

In order for you to find the defendant guilty of this crime, the People are required to prove, from all the evidence in the case, beyond a reasonable doubt, both [each] of the following two [three] elements:

1. That on or about (date) , in the county of (county) , the defendant, (defendant's name) , knowingly possessed personal property of another pursuant to an agreement that the property would be returned to the owner at a future time; and

2. That, without the owner's consent, the defendant knowingly loaned [or leased] [or pledged] [or pawned] [or encumbered] such property and thereby created a risk that the owner would not be able to recover such property [or would suffer a pecuniary loss].

[NOTE: Add if statutory defense applies:

and

3. That, at the time the prosecution was commenced, (date commenced), either (a) the defendant had not recovered possession of the property, unencumbered as a result of the unlawful disposition, or (b) the owner had suffered material economic loss as a result of the unlawful disposition.]

If you find the People have proven beyond a reasonable doubt (each / both) of those elements, you must find the defendant guilty of this crime.

If you find the People have not proven beyond a reasonable doubt (either one / any one) or more of those elements, you must find the defendant not guilty of this crime.