People v. Robinson

60 N.Y.2d 982 | NY | 1983

Lead Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

On the morning of May 31, 1977, an employee of Volpe Motors in Rochester discovered that a new Lincoln Continental had been taken from the repair shop, where it was being readied for delivery. Later in the day the police found the car on a local street some distance from the dealer’s place of business. Missing from the car were its wheels and tires, which had an aggregate value of $750. Defendant was arrested after the police found his fingerprints on the rear fender skirts. According to defendant’s statement, he did not participate in the theft but, knowing the car had been stolen the night before from Volpe Motors, he helped two friends remove the wheels and tires and load them into their automobile. In an indictment charging grand larceny in the third degree, defendant was accused of stealing the wheels and tires. At trial, the People offered no evidence connecting defendant with theft of the car. The jury found defendant guilty of grand larceny.

The Appellate Division reversed the conviction and dismissed the indictment, concluding that while defendant might have been guilty of criminal possession of stolen property, the evidence was insufficient to establish that he committed larceny. The Appellate Division’s reversal having been “on the law and facts,” our review is of course limited to the propriety of its legal conclusions.^* The Appellate Division ruled as a matter of law that the larceny of the car, including its wheels and tires, was complete when dominion and control of the car were assumed, and that there was insufficient evidence to establish defendant’s guilt for this crime. These legal conclusions being correct, we affirm.

A person commits larceny when, “with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof.” (Penal Law, § 155.05, subd 1.) Where a larceny is committed by trespassory taking, a thief’s responsibility for the crime is not diminished because his act of carrying away the loot (asportation) is frustrated at an early stage. Thus, a shoplifter who exercises dominion and control over the goods wholly inconsistent with the continued rights of the owner can be guilty of larceny even if apprehended before leaving the store (People v Olivo, 52 NY2d 309), a car thief who starts the car can commit larceny before he actually drives the automobile away (People v Alamo, 34 NY2d 453), and a pickpocket can be guilty of larceny even though his removal of the victim’s possessions is interrupted before completion (Harrison v People, 50 NY 518). By the same token, one who learns of a larceny while it is in progress and assists its perpetrator cannot avoid accomplice liability merely because such participation occurs after the principal, for purposes of his own liability, has technically completed the crime. (United States v Barlow, 470 F2d 1245.)

The Appellate Division did not misapply these principles. Contrary to the view urged upon us by the People, the court did not decide, as a matter of law, that a larceny is complete for all purposes when the principal’s liability attaches. The court simply decided that in this case asportation — whether of the car, or of the wheels and tires — had ceased before defendant’s involvement. Where defendant first became involved the day after theft of the car, where the original perpetrators were not being pursued in the act of carrying away the loot, and where the removal of the wheels and tires took place some distance from the dealership, we cannot say that the court below was incorrect in its conclusion that asportation had ceased before defendant’s involvement.

The dissent reasons that if the original perpetrators intended only to steal the wheels and tires, the larceny would not be complete until these components were removed from the car. Under the proposed new rule of law, a larceny of parts can never be complete until they are removed from the whole, however great the passage of time or distance between the original taking and the subsequent removal, and irrespective of intervening circumstances. We decline to adopt such a rigid rule, particularly in a case where the intent of the original perpetrators was never even an issue at trial.

* The order is appealable to this court inasmuch as it was based “upon the law and such facts which, but for the determination of law, would not have led to reversal or modification” (GPL 450.90, subd 2, par [a]).

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Dissenting Opinion

Meyer, J.

(dissenting). The fallacy in the majority’s reasoning and in that of the Appellate Division is in the insistence on viewing the theft as of the car rather than of its tires and wheels.^* There is, of course, no question that the original takers removed the entire car from Volpe Motors premises. But it is also true that if the intention of the original takers was to steal not the entire car but only the tires and wheels, when asportation of the car had ceased is irrelevant to defendant’s criminal responsibility.

This is because by definition larceny requires not only asportation or taking of property but also the intent to deprive the owner of it or to appropriate it to the thief or to a third person (Penal Law, § 155.05, subd 1). So far as' pertinent to the present case, to “deprive” means to withhold property permanently or under such circumstances that the major portion of its economic value is lost to the owner, or to dispose of the property in such a manner or under such circumstances as to render it unlikely that the owner will recover it (Penal Law, § 155.00, subd 3), and to “appropriate” means to control property permanently or under such circumstances as to acquire the major portion of its economic value, or to dispose of it for the benefit of oneself or a third person (Penal Law, § 155.00, subd 4).

Whether the larceny committed by defendant’s friends had been completed when the Lincoln Continental left Volpe’s premises turns, therefore, on whether their intent was to deprive Volpe of, or appropriate to themselves, the entire car or only the tires and wheels. From the facts that defendant’s friends had tried unsuccessfully to remove the tires and wheels before they contacted defendant and that they took with them only the tires and wheels and left the car without wheels or tires in the park, a trier of fact could infer that they intended to deprive Volpe of, or appropriate to themselves, only the tires and wheels. Yet the Appellate Division has held that the original takers’ “possession of the entire vehicle after it was removed from Volpe’s premises * * * as a matter of law * * * established] a taking” and that “the larceny of the car, and hence its tires and wheels, was accomplished and complete when the car was removed from the premises” (90 AD2d, at p 250 [emphasis supplied]). That ruling on the law was error because it looked only to asportation and ignored the element of intent and the factual basis in the record upon which the jury could have found that defendant’s friends’ intention was only to steal the tires and wheels, and that the entire car had been removed from Volpe’s premises only for the purpose of removing the tires and wheels.

The indictment charged defendant with larceny of the tires and wheels only. At the close of the People’s case defendant’s attorney moved to dismiss on the ground that theft of the car was complete when it was taken from Volpe’s premises. The Trial Judge overruled that motion and charged the jury on larceny of the tires and wheels only. No request for an instruction as to the intent of the original takers was made by defendant.

Of course, defendant’s own criminal responsibility turned upon his personal knowledge and intent (see Penal Law, § 20.00; People v La Belle, 18 NY2d 405, 412). Unless defendant knew that he was taking part in a recently commenced and continuing plan to steal only the tires and wheels, he could not be deemed an accomplice to the larceny of them. However, based on defendant’s statement that he knew the car had been stolen the night before and that the object of his friends was to remove the tires and wheels, there was evidence from which the jury could find that he knowingly and intentionally participated in the larceny of the tires and wheels.

To consider the asportation by the original takers without considering also their intent was inconsistent with the statutory definitions quoted above and, therefore, an error of law. The order of the Appellate Division should, therefore, be reversed and the matter remitted to that court for its review of the facts.

Chief Judge Cooke and Judges Jones, Wachtler, Simons and Kaye concur; Judge Meyer dissents and votes to reverse in an opinion in which Judge Jasen concurs.

Order affirmed in a memorandum.

* Thus the Appellate Division opinion states (90 AD2d, at p 250) that “We agree that the evidence was insufficient to connect defendant with the theft of the car”, that “larceny of the car, and hence its tires and wheels, was accomplished and complete when the car was removed” (id.), and that “The People’s evidence in the case at bar does not lead to the inference that defendant had knowledge of his friends’ intent to steal the car" (id., at p 251 [emphasis supplied]).