Lead Opinion
OPINION OF THE COURT
In this appeal, we conclude that the People’s failure to recover stolen property from defendant does not forestall their ability to establish that her conscious objective in threatening or using physical force was to prevent or overcome resistance to the taking or retention of that stolen property. We therefore modify the Appellate Division order to reinstate defendant’s convictions of robbery in the first and second degrees; and to remit the case to the Appellate Divisiоn for consideration of the facts; and, as so modified, affirm.
I.
Defendant Hazel Gordon was charged with, among other counts, robbery in the first and second degrees (Penal Law §§ 160.15 [3]; 160.10 [1], [2] [a]), and assault in the second degree (Penal Law § 120.05 [2]), stemming from events during a visit by defendant to a department store in a mall outside Albany. Defendant went to the store with her teenage son, her friend and subsequent codefendant Gloria Wheatley, and a toddler. Based on her conduct while in the store, security personnel suspected that defendant stole merchandise, and thereafter followed and stopped the group as they left. Police eventually arrested defendant in the mall parking lot as she attempted to escape, and she and Wheatley were tried together. No merchandise was recovered from defendant or her companions.
At trial, the People presented testimony from Rayon James, a loss prevention officer, who tracked defendant with surveillance cameras, and Michael Lisky, a security guard, who followed defendant throughout the store. James testified that he grew suspicious as he observed defendant and Wheatley browse in the jewelry department. Specifically, he observed defendant select two sets of earrings from a display rack, place one pair
James continued to track defendant and Wheatley with security cameras as they walked from the jewelry to the infant/ maternity department, located close to the back of the store. He testified that as defendant walked, she “began removing the jewelry from the backing . . . [and] dropping [the backings] on the floor.” James also observed Wheatley remove backings from a third pair of earrings. After the women moved away, Lisky walked to the infant/maternity department and recovered three pairs of backings from the store floor. He then continued to follow defendant and Wheatley.
Defendant made no рurchases during the remainder of time she spent in the store. She did, however, make four stops to the layaway counter. Each time, defendant placed at least one item on layaway and left the counter without any merchandise visibly in her possession.
Defendant eventually met her son, and they exited the store with Wheatley and the toddler. James observed their departure on the store cameras and instructed Lisky to follow the group into the mall corridor. James then exited the security booth to assist Lisky.
Before James arrived, Lisky approached defendant and her companions just outside the store. After he identified himself as a store security guard and asked her to return to the store because she had “merchandise that’s not paid for,” defendant “began yelling and screaming,” refused to return to the store, and denied stealing anything. When Lisky stepped in front of defendant, she began “pounding” on his chest with “a closed clenched fist.” Lisky then placed his hands on defendant in an attempt to stop her from leaving.
James arrived soon thereafter, entered the fraсas, and pushed defendant off of Lisky. He told defendant that they would call the police if she did not return to the store. According to Lisky, defendant then reached “inside her bag and pulled two large pens out and then held them in her hand . . . [and] started
When they approached the exit, Lisky tried to grаb the pens from defendant in an attempt to delay her departure. At that point, according to James, defendant’s son came up behind James and pulled out a knife. The son ran out of the mall when James turned to face him, and James chased him through the parking lot and down a bike path between the mall and a neighboring cemetery. According to James, as he ran, the son “put[ ] his hands in his pocket . . . [and] toss[ed] things . . . into the cemetery area.” James testified that he thought defendant passed stolen merchandise to her son and that thе son tossed this stolen property into the cemetery. After the son’s arrest, neither merchandise nor a knife was recovered from him, nor was anything found during a subsequent search of the cemetery.
Lisky followed defendant and Wheatley into the mall parking lot where the women entered a car. He approached the car, opened its door, and unsuccessfully attempted to remove defendant’s keys from the ignition. Lisky backed off when defendant tried to swipe him again with the pens, and defendant then “took off’ through the parking lot. Undeterred, Lisky took a photo of her license plate, called the police, and followed defendant on foot.
Another store employee, Lance Pappas, testified that he was on a break when he observed the events in the parking lot and went to the car just as Lisky attempted to take the keys from defendant. When defendant pulled away, Pappas ran through the parking lot and stood in front of her car in an attempt to stop her departure. Several witnesses testified that they saw defendant intentiоnally swerve the car in Pappas’s direction and hit him. Pappas fell, injuring his rib cage.
Defendant continued driving until she reached the place where the police were holding her son. She then exited the car and ran towards the officers. After she ignored orders to stop, an officer subdued defendant with a taser, and arrested her and Wheatley.
At the trial, the People submitted extensive video footage which corroborated the live testimony. The footage depicted
The jury found defendant guilty of one count of robbery in the first degree, two counts of robbery in the second degree, and one count of assault in the second degree.
On appeal, defendant challenged her convictions as based upon legally insufficient evidence. On the robbery counts, she alleged that because the earrings were not recovered from her or her companions, the jury could not reasonably infer that she threatened or used force to retain possession of that property. With respect to the assault count, she claimed the People failed to еstablish that it was her conscious objective to cause physical injury to Pappas.
The Appellate Division modified the Supreme Court judgment by reducing defendant’s robbery convictions to petit larceny; remitted the matter to Supreme Court for resentencing; and, as so modified, affirmed (see People v Gordon,
A Judge of this Court granted the People and defendant leave to appeal (see
It is well established that “[a] verdict is legally sufficient if there is any valid line of reasoning and permissible inferences that could lead a rational person to conclude that every element of the charged crime hаs been proven beyond a reasonable doubt” (People v Delamota,
A person is guilty of robbery in the first degree when such person “forcibly steals property and when, in the course of the сommission of the crime or of immediate flight therefrom, [such person] or another participant in the crime . . . [u]ses or threatens the immediate use of a dangerous instrument” (Penal Law § 160.15 [3]). Similarly, a person is guilty of robbery in the second degree when such person “forcibly steals property and when” the individual “is aided by another person actually present,” or “[i]n the course of the commission of the crime or of immediate flight therefrom, [such person] or another participant in the crime,” also “[clauses physical injury to any pеrson who is not a participant in the crime” (Penal Law § 160.10 [1], [2] [a]).
Thus, robbery in the first and second degrees both require the prosecution to prove that a defendant “forcibly [stole] property.” A person commits “forcible stealing” when, during the
“The applicablе culpability standard — intent—require[s] evidence that, in using or threatening physical force, [the] defendant’s ‘conscious objective’ was either to compel [the] victim to deliver up property or to prevent or overcome resistance to the taking” or retention thereof (People v Smith,
Force used solely to effectuate a defendant’s escape will not support a robbery conviction (see e.g. People v Bynum,
Some Appellate Division departments have adopted what amounts to an inverse proposition, that failure to recover stolen property from a defendant precludes a jury’s finding of guilt for first or second degree robbery, notwithstanding the possible inferences which might reasonably follow from the trial evidence.
Whether a defendant had the intent to forcibly steal property is a question for the trier of fact, a question which may be answered based on direct evidence of such intent, or upon rеasonable inferences drawn from the trial evidence (see People v Bueno, 18 NY3d 160, 169 [2011]; People v Barnes,
Certainly, recovery from the defendant of the stolen property provides a strong basis for a jury’s finding of criminal intent (see e.g. Bynum,
A requirement that the People establish possession would permit a defendant to escape prosecution where the defendant disposed of the stolen property prior to arrest. In certain cases, moreover, recovery may be next to impossible given the characteristics of the property and the circumstances surrounding the robbery. The present case is but one example of the difficulties of prosecution where the property is small, easily disposed of, and difficult to find. This is particularly true where, as here, the crime scene encompasses a large and public area. We see no basis for interpreting the law in a way that rewards criminal conduct, or places an insurmountable burden on the People.
Defendant’s conduct at the store exit and in the parking lot further support the jury’s determination of her guilt. When Lisky and James approached defendant, she acted in a violent and threatening manner that was disproportionately aggressive under the circumstances. This extreme reaction provided an additional basis upon which the jury could infer that defendant’s actions were intended to ensure her retention of the stolen property.
Contrary to defendant’s argument, the fact that the earrings were not recovered from her or her companions does not make the inference unreasonable or render the evidence legally insufficient. As we have made clear, the jury could have taken into consideration the failure to recover the earrings and still have found the evidence suffiсiently persuasive to find intent. The jury’s conclusion is reasonable given defendant’s conduct inside and outside the store.
With respect to defendant’s cross appeal of her conviction for second degree assault, we conclude that her challenge on sufficiency grounds is without merit. The testimony from the victim and several eyewitnesses that defendant swerved into Pappas, and his testimony as to the physical injuries he incurred were more than enough to sustain the jury’s guilty verdict.
Accordingly, the Appellate Division order should be modifiеd by reinstating defendant’s convictions of robbery in the first and second degrees; and remitting the case to the Appellate Division for consideration of the facts (see CPL 470.25 [2] [d]; 470.40 [2] [b]); and, as so modified, affirmed.
Notes
. After defendant’s first stop at layaway, Lisky went to the counter where the layaway employee apparently told him that defendant had placed “towels or something” on reserve. No mention was made of the earrings or any jewelry.
. The jury convicted Wheatley of petit larceny.
. Pursuant to Penal Law § 155.05 (1), “[a] person steals property and commits larceny when, with intent to deprive anоther of property or to appropriate the same to [such person] or to a third person, [such person] wrongfully takes, obtains or withholds such property from an owner thereof.”
. Our dissenting colleague concludes that the evidence is insufficient to satisfy the immediacy requirement of the robbery statute because too much time elapsed between the taking of the earrings and the altercation. Whether
Concurrence in Part
(dissenting in part). A defendant not found in possession of stolen property may be convicted of robbery on a theory of forcible retention, but only upon proof, direct or circumstantial, to justify the inference that, at the time of her resort to force, she retained what she stole. Proof of actual possession contempоraneous with the use of force to perfect the
The Appellate Division may have spoken with less than optimal precision when it said in substance that because defendant was not apprehended in possession of the stolen property she could not be convicted of robbery on a forcible retention theory.
The People urge that the jury could reasonably have inferred from defendant’s taking of the earrings that she possessed them until and during her confrontation with the store employees. But, although there was evidence that she stole the earrings, there was none that she still had them at the time of the altercation. That latter event was removed by at least half an hour from the taking, аnd there is no evidence as to the disposition of the earrings in the meantime. Defendant could easily have transferred them to someone else (her son or shopping partner and codefendant are obvious candidates) or might have left them, purposely or otherwise, at the layaway counter during one of her several video-recorded trips there. What is certain is that she did not possess the earrings shortly after the altercation, and there was no evidence to substantiate the explanatory hypothеsis that she got rid of them following the altercation but before her arrest — a period during which she was apparently constantly pursued and observed by the store employees.
It is presumably to avoid elevating petit larceny to robbery on the basis of a purely speculative connection between the taking and a subsequent use of force that the robbery statute repeatedly requires the use of force to coincide with or follow
The majority suggests that unless the People are relieved of the statutory requirement of proving that force was used for the purpose of retaining stolen property, criminal conduct will be rewarded in contravention of public policy (majority op at 651). All that is properly involved, however, is the measuring of the statutory criteria for robbery against the conduct proved. Moreover, there is no social or penal justification for treating as a class B or C felony what is, without the benefit of considerable imaginative embellishment, a petit larceny followed at some temporal remove by an assault.
In reducing the robbery convictions, the Appellate Division, I believe, correctly conformed the judgment to the proof. I would affirm the appealed order in its entirety.
Order modified by reinstating defendant’s conviction of robbery in the first and second degrees and remitting the case to the Appellate Division, Third Department, for consideration of the-facts (CPL 470.25 [2] [d]; 470.40 [2] [b]) and, as so modified, affirmed.
. The decision says,
“[w]here a defendant is found to be in possession of stolen property, a jury may infer that he or she threatened or used force to prevent or overcome resistance to its taking or retention; however, when such evidence is lacking, it is impossible to conclude beyond a reasonable doubt that defendant’s conscious objective in threatening to use physical force was to prevent or overcome resistance to the retention of the property” (People v Gordon,101 AD3d 1158 , 1159 [2012] [emphasis added; internal quotation marks and citations omitted]).
. Robbery is defined as forcible stealing, which, as is here relevant, is in turn defined as the “use[ ] or threaten[ed] . . . immediate use of physical force upon another person for the purpose of.. . [preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking” (Penal Law § 160.00 [1] [emphasis added]).