(dissenting). At issue is whether defendant’s conviction for unauthorized use of a vehicle in the second degree (Penal Law §§ 165.06, 165.05 [1]) was supported by legally sufficient evidence, where defendant did not demonstrate the ability to operate the vehicle or the means to do so.1 Stated differently, the question is whether the evidence adduced at trial was sufficient to establish that defendant “exercised control over” or “otherwise used” the vehicle within the meaning of the unauthorized use of a vehicle in the second degree statute. Relying *67primarily on this Court’s decisions in People v McCaleb (25 NY2d 394 [1969]) and People v Roby (39 NY2d 69 [1976]), the majority stated, “[w]hether denominated as exercising control over or otherwise using a vehicle, a violation of the statute occurs when a person enters an automobile without permission and takes actions that interfere with or are detrimental to the owner’s possession or use of the vehicle” (majority op at 64). Applying this standard, the majority held that “the evidence adduced at trial was legally sufficient to sustain defendant’s conviction of unauthorized use of a vehicle” (id. at 64).
Because I believe the majority reads the unauthorized use of a vehicle statute too broadly, and because I believe the statute in question is meant to prohibit a defendant’s unauthorized “use” of the vehicle as a vehicle, I disagree with the majority’s holding that there was legally sufficient evidence to support defendant’s conviction for unauthorized use of a vehicle. Accordingly, I dissent and would affirm the order of the Appellate Division.
McCaleb and Roby are not in conflict with my position. They support it. In McCaleb, and its companion case People v Gibbs, defendant McCaleb was found sitting in the back seat of a stolen car; although the car’s engine was turned off, there was a working key in the ignition (see McCaleb, 25 NY2d at 397). The second defendant, Gibbs, was discovered sleeping in the front passenger seat of a stolen car with the engine running (id.). In remanding both appeals for a new trial, the Court held that the rebuttable presumption contained in Penal Law § 165.05 (1)— that a defendant in a stolen automobile had knowledge that he did not have the vehicle owner’s consent — satisfies due process (id. at 400-401).2 Further, the Court held that the unauthorized occupation of another’s motor vehicle, without any movement of said vehicle, falls within the ambit of the unauthorized use of a vehicle statute (id. at 399). In reaching this holding, the McCaleb Court logically concluded that the statute’s terms “exercises control over,” “rides in,” and “otherwise uses” *68should be interpreted broadly to the extent of including passengers to negate any requirement that the statute covers only those involved in the actual taking of the vehicle, or only applies to situations where the vehicle is moving (id.).
Here, the majority points to the McCaleb Court’s recognition that “a person may exercise control over a vehicle by ‘barring the owner or others from entry into the car’ or temporarily using it ‘for a purpose accomplished while the vehicle remains . . . stationary’ ” (majority op at 63, quoting 25 NY2d at 399). In my view, the majority’s reliance on such language is misplaced because the language bears no relation to what happened in McCaleb, Roby (39 NY2d at 71 [defendant was in the front passenger seat of a parked stolen car, while his codefendant was in the driver’s seat attempting to insert a key into the ignition]) or the case at bar. This language supports the McCaleb Court’s statement that “[t]he [statute’s] exercise of control [term] is not limited to a moving vehicle” (25 NY2d at 399 [emphasis added]), a point I do not dispute. In addition, applying the “for a purpose accomplished while the vehicle remains . . . stationary” language leads to an overly broad and vague construction of the statute because the list of potential “purposes” would be virtually limitless. Such a construction would necessarily lead to incongruous results.
In conclusion, pursuant to McCaleb and Roby, “unauthorized use” convictions may only be sustained where the defendant’s presence in a stationary vehicle is coupled with other evidence demonstrating the ability to operate the vehicle or the means to do so. Based on the foregoing, I would hold that for the purpose of legal sufficiency, in order for a lone defendant to come within the unauthorized use of a vehicle statute, evidence must be adduced at trial that he or she, without the authorization of the vehicle owner (and with an intent to operate the vehicle), obtained the means to set the vehicle’s mechanism in operation or possessed tools designed to bypass the vehicle’s ignition system.3 Without evidence of defendant’s intent and ability to operate the vehicle, the requirements for “unauthorized use” cannot be met.
*69Chief Judge Lippman and Judges Ciparick and Read concur with Judge Graffeo; Judge Smith concurs in result in a separate concurring opinion; Judge Jones dissents and votes to affirm in another opinion in which Judge Pigott concurs.
Order, insofar as appealed from, reversed, etc.
. Penal Law § 165.06 provides:
“A person is guilty of unauthorized use of a vehicle in the second degree when . . .
“[h]e commits the crime of unauthorized use of a vehicle in the third degree as defined in subdivision one of section 165.05 of this article and has been previously convicted of the crime of unauthorized use of a vehicle in the third degree as defined in subdivision one of section 165.05 or second degree within the preceding ten years.”
Penal Law § 165.05 (1) provides:
“A person is guilty of unauthorized use of a vehicle in the third degree when . . .
“[k]nowing that he does not have the consent of the owner, he takes, operates, exercises control over, rides in or otherwise uses a vehicle. A person who engages in any such conduct without the consent of the owner is presumed to know that he does not have such consent.”
. The Court explained:
“There is a ‘fair’ ‘natural’ and ‘rational’ connection between the fact that a car is being used without permission of its owner, and the presumption that those in the car, driver and passengers alike, are aware they do not have permission. The likelihood of innocent use or occupation of a ‘stolen’ vehicle is minimal, and in the rare instance could he easily explained, presenting no more than a light burden [on the defense] of going forward to make such explanation” (McCaleb, 25 NY2d at 400-401).
. The First and Second Departments have similarly held that a defendant’s presence in a parked vehicle, without evidence of ability to operate the vehicle or means to do so, is insufficient to establish unauthorized use of a vehicle (see e.g. Matter of Jose C., 52 AD3d 253 [1st Dept 2008]; Matter of Javier F., 3 AD3d 493 [2d Dept 2004]; People v Gray, 154 AD2d 547 [2d Dept 1989]).