156 A.D.2d 144 | N.Y. App. Div. | 1989
Judgment of the Supreme Court, New York County (Franklin Weissberg, J.), rendered January 26, 1988, convicting the defendant after a bench trial, of robbery in the third degree, and sentencing the defendant to a term of 2 to 4 years, modified, on the law, to the extent of reducing the conviction to one for petit larceny, vacating the sentence and resentencing the defendant to time served, and except as so modified, affirmed.
The present prosecution arises out of the theft of some roses. It is not disputed that the roses were taken by the defendant from the complainant’s stand without the use of any force. Indeed, the complainant was not aware of the theft until after it had been completed and the defendant was in the process of walking away from the stand. When the com
The defendant was charged with robbery in the first degree (Penal Law § 160.15 [3]) and assault in the second degree (Penal Law § 120.05 [2]). At the close of the People’s case the court dismissed those charges ruling that the prosecution had not presented sufficient evidence to warrant a conviction on either count. The court, did, however, think the evidence sufficient to support a conviction of the lesser included offense of robbery in the third degree (Penal Law § 160.05) because the incident had included the use of force. The defense had contended that the evidence was sufficient only to sustain a conviction of petit larceny and subsequently reiterated that view in a motion to set aside the verdict, which motion was denied.
To sustain a conviction of robbery in the third degree, the prosecution must prove that the defendant used force in the commission of the theft (Penal Law § 160.05). More specifically, it must be shown not simply that the incident included the use of force, but that the defendant used or threatened
"the immediate use of physical force upon another person for the purpose of:
"1. Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or
"2. Compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny” (Penal Law § 160.00; see also, People v Rudelt, 6 AD2d 640, 642; People v Chessman, 75 AD2d 187, 193-194, appeal dismissed 54 NY2d 1016).
The issue presented by the facts at bar is whether it was established that the defendant did, in fact, use physical force "for the purpose of * * * [preventing or overcoming resistance * * * to the retention [of the stolen property] immediately after the taking”. We do not think that it was.
The circumstances were entirely different in the cases cited by the People. In both People v Brock (125 AD2d 401) and People v Johnstone (131 AD2d 782) there was clear evidence that the defendants retained the stolen property and that they sought to continue to do so by threatening the use of force against the complainants.
Given the failure of the People to adduce evidence sufficient to establish that force was used by the defendant in such a way as to transform his larceny into a robbery, we reduce his conviction to one for the lesser included offense of petit larceny (see, People v Walden, 120 AD2d 362). As defendant has already served in excess of the maximum one-year sentence for petit larceny, a class A misdemeanor, there is no need to remand for resentencing (see, People v Riddick, 69 AD2d 826; People v Bernard, 123 AD2d 324). Concur—Murphy, P. J., Rosenberger and Wallach, JJ.
Sullivan and Asch, JJ., dissent in a memorandum by Sullivan, J., as follows: The majority concludes that the People failed to prove beyond a reasonable doubt that defendant beat and scratched the complainant for the purpose of retaining the stolen property and overcoming the latter’s resistance to the theft, and that it is far more likely that any force defendant used was only meant to facilitate his escape. On the basis of such reasoning, the majority modifies the judgment to reduce defendant’s conviction of robbery in the third degree to petit larceny.
As the record shows, within seconds of the theft, the storekeeper pursued defendant as he ran off with the stolen goods, a bucket of roses. In a matter of minutes, the storekeeper caught up with defendant, who still held the stolen property, and kicked him, thus actively resisting defendant’s retention of the stolen property. In response, defendant beat and scratched the storekeeper with an antenna to overcome that resistance. Yet, because the policeman could not see whether defendant still held onto the bucket of flowers while on the ground and engaged in a fight with the storekeeper,
While defendant, no doubt, also used force to hasten his escape, that hardly absolves him of the robbery, for it is settled that although force used to effect only an escape does not constitute a robbery, force used to effect an escape with the stolen property does constitute robbery. (People v Rudelt, 6 AD2d 640, 642.) This principle applies even where force was not used to effect the taking of the property. "[Although the thief may have procured possession of the property of another without force or violence, the removal of the property from the presence of that other [i.e., its owner], with force or violence, constitutes robbery.” (People v Glynn, 54 Hun 332, 334, affd 123 NY 631.) Here, defendant procured the property without force, but used force in the course of removing it from the owner’s presence.
Indeed, this case is virtually indistinguishable from two
In support of its conclusion that the proof was lacking to show that defendant used force to overcome the storekeeper’s resistance to his retention of the stolen property, the majority cites People v Walden (120 AD2d 362). There, the defendant had stolen a package of gum. When confronted with her theft by the store owner, who had deducted the cost of the gum from her change, the defendant began throwing merchandise around. In response to the defendant "trashing” the store, the owner’s son threatened to hit her if she did not stop. The defendant, in turn, hit the son. In such circumstances, this court understandably found that the force used by the defendant was not for the purpose of retaining the stolen property. The facts here compel a completely different result. They show that immediately after the theft, in the face of resistance to his retention of the property, defendant used force to effect an escape with the stolen goods. It should be noted that the roses, about 100 stems, were not scattered on the ground, but were still in the bucket, which was recovered at the scene.
Since defendant was properly convicted of robbery in the third degree, I would affirm.
The storekeeper was unavailable to testify. At defendant’s request, the court, in reaching its decision, considered the storekeeper a missing witness.