The People, Appellant-Respondent,v.Hazel E. Gordon, Respondent-Appellant.BriefN.Y.April 30, 2014To Be Argued By: Time Requested: STEVEN M. SHARP TEN (10) minutes COURT OF APPEALS STATE OF NEW YORK _______________ THE PEOPLE OF THE STATE OF NEW YORK, Appellant-Respondent, - against - HAZEL GORDON Defendant-Respondent-Appellant. _______________ ________________________________________________________________________ APPELLANT-RESPONDENT’S BRIEF ________________________________________________________________________ P. DAVID SOARES ALBANY COUNTY DISTRICT ATTORNEY ATTORNEY FOR APPELLANT-RESPONDENT ALBANY COUNTY JUDICIAL CENTER 6 LODGE STREET ALBANY, NEW YORK 12207 TEL. (518) 487-5460 DATE COMPLETED: JULY 18, 2013 STEVEN M. SHARP Of Counsel ___________________________________________________________________________________________ i TABLE OF CONTENTS Page TABLE OF AUTHORITIES ....................................................................................................... ii PRELIMINARY STATEMENT ................................................................................................. 1 STATEMENT OF FACTS .......................................................................................................... 2 ARGUMENT ............................................................................................................................... 5 I. THE PEOPLE PROVED DEFENDANT’S GUILT BEYOND A REASONABLE DOUBT ................................................................................................... 5 A. Proof of Intent to Retain is not Insufficient as a Matter of Law Even Though no Stolen Property is Recovered ................................................................ 6 B. Defendant Used and Threatened to Use Force for the Purpose of Retaining Stolen Property.......................................................................................................... 10 CONCLUSION ........................................................................................................................... 14 ii TABLE OF AUTHORITIES CASES Page(s) People v Barnes, 50 NY2d 375 [1980] ........................................................................................................ 8 People v Bueno, 18 NY3d 160 [2011] ........................................................................................................ 8 People v Carr-El, 99 NY2d 546 [2002] ....................................................................................................... 11 People v Danielson, 9 NY3d 342 [2007] .......................................................................................................... 5 People v Ford, 66 NY2d 428 [1985] ....................................................................................................... 11 People v Grant, 17 NY3d 613 [2011] ........................................................................................................ 6 People v Hedgeman, 70 NY2d 533 [1987] ........................................................................................................ 6 People v Jones, 282 AD2d 382 [1st Dept 2001] ........................................................................................ 6 People v Jones, 300 AD2d 30 [1st Dept 2002] .......................................................................................... 6 People v Mackey, 49 NY2d 274 [1980] ........................................................................................................ 6 People v Rodriguez, 17 NY3d 486 [2011] ........................................................................................................ 7 People v Smith, 79 NY2d 309 [1992] ..................................................................................................... 6, 11 People v Steinberg, 79 NY2d 673 [1992] ........................................................................................................ 7 People v Washington, 160 AD2d 205 [1st Dept1990] ........................................................................................ 11 iii TABLE OF AUTHORITIES (Cont.) CASES Page(s) People v White, 304 AD2d 384 [1st Dept 2003] ........................................................................................ 6 1 PRELIMINARY STATEMENT By permission of the Honorable Judge Eugene F. Pigott, Jr., Associate Judge of the New York Court of Appeals, granted April 11, 2013, the People of the State of New York appeal from an order of the Appellate Division, Third Department, entered December 6, 2012, which modified a judgment of the Supreme Court of the State of New York, Albany County (Lamont, J.), rendered April 23, 2010, convicting her of Robbery in the First Degree (Penal Law § 160.15[3]) and two counts of Robbery in the Second Degree (Penal Law § 160.10[1], [2][a]), upon a jury verdict, and sentencing her to an aggregate term of five years (5) in prison and five years (5) of post-release supervision. Defendant is currently incarcerated pursuant to this judgment of conviction. 2 STATEMENT OF FACTS In July of 2009, an Albany County Grand Jury handed up a six-count indictment charging defendant, Hazel Gordon, with one count of Robbery in the First Degree, in violation of Section 160.15[3] of the Penal Law of the State of New York, a Class B Felony, two counts of Robbery in the Second Degree in violation of Sections 160.10[2][a]; 160.10[1] of the Penal Law of the State of New York, a Class C Felony, one count of Assault in the Second Degree, in violation of Section 120.05[2] of the Penal Law of the State of New York, a Class D Felony, one count of Reckless Endangerment in the First Degree, in violation of Section 120.25 of the Penal Law of the State of New York, a Class D Felony and one count of Resisting Arrest in violation of Section 205.30 of the Penal Law of the State of New York, a Class A Misdemeanor (A 8-13). These charges stem from an incident wherein defendant stole property from a department store and threatened or used force to prevent or overcome resistance to its taking or retention (A 8-13). The People’s Case On May 8, 2009, Rayon James, a loss prevention officer at Boscov’s, was watching live surveillance footage when he observed defendant and her codefendant in the jewelry section (A 15-16). James watched as defendant took some of the jewelry and held the items close to her chest and the codefendant took a piece of jewelry as well (A 16-17). At that point, James contacted Michael Lisky, another loss prevention officer, and told him what he had observed and instructed Lisky to follow defendant (A 16, 38- 39). As they headed to the back of the store, James observed defendant and the 3 codefendant remove the backings to the jewelry, which contain the UPC code and price of the item (A 18). Defendant threw the jewelry backers to the ground (A 19). Lisky picked up the backers (A 40, 42-44). After discarding the backers, they went to the young men’s department where they were joined by defendant’s son, Kevon Gordon (A 19). Defendant and her son placed some towels on layaway; they did not place any earrings on layaway (A 19, 37, 47). The group then headed for the exit, causing James to tell Lisky to stop them (A 19). James left the security booth to assist Lisky in apprehending the shoplifters (A 20). Lisky identified himself as a member of loss prevention and told defendant and the codefendant that they needed to return to the store to pay for the merchandise (A 48- 49). Defendant started yelling and screaming (A 48). Defendant hit Lisky in the chest with a closed fist (A 49-50). When James arrived outside the store, defendant was in Lisky’s face, cursing at him (A 21-22). Despite James’s attempts to calm defendant down, she pulled out two pens and told him “I will kill you, blood clot. I will fuck you up” (A 22, 50). James and Lisky continued to follow defendant and called the police (A 22-23, 50). As defendant headed for the mall exit, Lisky tried to take the pens from her hand (A 24-25, 50, 64). Defendant’s son pulled a knife from his pocket and threatened Lisky (A 25, 50). After pulling the knife, defendant’s son ran and James pursued (A 25, 50). While running along the mall road, Gordon reached into his pockets and began throwing what James believed was the store merchandise into the nearby cemetery (A 29-30). Eventually, the police arrived and arrested defendant’s son (A 30, 92-93). Meanwhile, Lisky followed defendant and the codefendant into the parking lot 4 where they got into the vehicle (A 52). Lisky tried to take defendant’s keys, but she swiped at him with a pen (A 52-53). Defendant drove off, exceeding the posted speed limit of 15 miles per hour and Lisky pursued on foot (A 57-58). At that time, Lance Pappas, another Boscov’s employee, was in the parking lot (A 59, 66-67). Defendant drove her vehicle and swerved in Pappas’s direction, striking him with her vehicle (A 59, 67, 79-80). Pappas rolled over the car and landed on a grate in the middle of the road (A 59, 82-83). Verdict and Sentencing After deliberations, the jury reached a unanimous verdict and convicted defendant 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 (A 100-02). Defendant was sentenced, in the aggregate, to a determinate sentence of 5 years in prison along with a 5 year period of post-release supervision (A 115-17). 5 POINT I THE PEOPLE PROVED DEFENDANT’S GUILT BEYOND A REASONABLE DOUBT Defendant was found guilty of one count of robbery in the first degree and two counts of robbery in the second degree for taking three pairs of earrings from Boscov’s department store. The Third Department, however, modified the robbery convictions to petit larceny convictions, holding that the People failed to prove that defendant’s use of force was for the purpose of overcoming resistance to the taking of the property or to its retention immediately thereafter solely because defendant and her accomplices were not found in possession of stolen property (A 5). This Court should reverse, holding that the lack of possession of stolen property, upon capture, does not render the evidence underlying the purpose of a defendant’s use of force legally insufficient as a matter of law. A verdict will be upheld as legally sufficient “when, viewing the facts in a light most favorable to the People, there is a valid line of reasoning and permissible inferences from which a rational jury could have found the elements of the crime proved beyond a reasonable doubt” (see People v Danielson, 9 NY3d 342, 349 [2007][internal citations omitted]). A sufficiency inquiry requires a court “to marshal the competent facts most favorable to the People and determine whether, as a matter of law, a jury could logically conclude that the People sustained their burden of proof” (see Danielson, 9 NY3d at 349). A person is guilty of robbery in the first degree when “he forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime . . . [u]ses or threatens the immediate use of a 6 dangerous instrument” (see Penal Law § 160.15[3]; People v Grant, 17 NY3d 613, 616 [2011]). A person is guilty of robbery in the second degree, as relevant here, when “he forcibly steals property and when . . . [h]e is aided by another person actually present” or when “he forcibly steals property and when . . . [i]n the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime . . . [c]auses physical injury to any person who is not a participant in the crime” (see Penal Law §§ 160.10[1], [2][a]; People v Hedgeman, 70 NY2d 533, 538 [1987]). The evidence at defendant’s trial was legally sufficient to establish her guilt of these crimes. Robbery is defined as a “forcible stealing” where “in the course of committing a larceny, the defendant uses . . . 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” (see Penal Law § 160.00). The “for the purpose of” statutory language creates a “mens rea element” (see People v Smith, 79 NY2d 309, 314 [1992]). Specifically, the defendant “must intend that the threatened or actual use of physical force” will further his goal of obtaining or retaining the stolen goods (see Smith, 79 NY2d at 312). The element of intent is established so long as force is not used “solely” to escape (see People v Jones, 300 AD2d 30 [1st Dept 2002], but rather “at least in part” to retain the property (see People v White, 304 AD2d 384 [1st Dept 2003]; People v Jones, 282 AD2d 382, 383 [1st Dept 2001]). The requisite intent may be established “by proof of defendant’s conduct and other facts and circumstances” (see People v Mackey, 49 NY2d 274, 279 [1980]). A. Proof of Intent to Retain is not Insufficient as a Matter of Law Even Though no Stolen Property is Recovered 7 Viewed in the light most favorable to the People, the evidence presented at trial established that defendant threatened and used force for the purpose of retaining the earrings. Nonetheless, the Third Department held that these actions, individually or collectively, could not satisfy the use of force with the purpose of retaining the stolen property element, unless defendant was found to be in possession of stolen property (A 5). Not only does such a rule contravene sound public policy, but the ruling also undermines the jury’s determination regarding defendant’s intent, which was within its exclusive domain. 1. Intent is the Exclusive Domain of the Jury The Penal Law defines the culpable mental state of “intent” as follows: “[a] person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct” (see Penal Law § 15.05[1]). Thus, intent to commit a crime may be inferred from a defendant’s conduct and the surrounding circumstances and a jury is entitled to infer that a defendant intended the natural and probable consequences of his acts (see People v Steinberg, 79 NY2d 673, 685 [1992]). Because “intent is an invisible operation of the mind, direct evidence is rarely available (in the absence of an admission) and is unnecessary where there is legally sufficient circumstantial evidence of intent” (see People v Rodriguez, 17 NY3d 486, 489 [2011][internal quotations and citations omitted]). Indeed, a defendant’s intent is rarely proven “by an explicit expression of culpability by the perpetrator” (see Steinberg, 79 NY2d at 682). Thus, even where a defendant does not expressly state his intent, a jury can rationally infer intent from the evidence introduced at trial. 8 The element of intent is an issue for the jury to resolve and “[w]here competing inferences may be drawn concerning a defendant’s intent, those inferences, “‘if not unreasonable, are within the exclusive domain of the finders of fact’” (see People v Bueno, 18 NY3d 160, 169 [2011] quoting People v Barnes, 50 NY2d 375, 381 [1980]). Where the inferences are reasonable, they are “not to be disturbed” by appellate courts (see Bueno, 18 NY3d at 169). The jury’s inference that defendant acted with the intent to retain the earrings was reasonable. Indeed, that defendant’s intent at the moment she acted was to retain the earrings was compellingly proven. Defendant concealed several pairs of earrings in her clothing and discarded the cardboard backers. After placing other items on layaway, defendant left the store. Since defendant did not pay for or otherwise discard the earrings, loss prevention confronted her and asked her to return the items to the store. Once confronted, defendant both threatened and used force against the officers. The plain inference from defendant’s conduct was that defendant was using force to retain the earrings. Following the charge and based on common sense, the unequivocal testimony of Lisky and James, and what defendant did not do at this critical juncture, the jury concluded that defendant used force in an effort to retain the earrings. This inference was reasonable and should not be disturbed on appeal. After all, defendant did not hand the earrings to Lisky or James, throw the earrings to them, drop them and back away, actions which evince an intent to return the items. Rather, defendant threatened the loss prevention officers with two pens. Defendant’s failure to surrender the property emphasizes her intention to retain the earrings, rather than a clear intent to divest herself of the earrings. By this conduct, the 9 jury correctly concluded that defendant threatened and used force in order to retain the earrings in the immediate flight from a larceny. In fact, the only other inference that could have been drawn by the jury is that defendant threatened and used force solely to escape. Even if one of defendant’s intentions was to flee, a desire to escape is not incompatible with, and does not negate the existence of, a contemporaneous intent to retain stolen merchandise and thus, it does not relieve a defendant of criminal culpability for robbery. Finally, a different intent finding is not warranted by defendant’s subsequent act of disposing of the earrings. What was critical was defendant’s exact intent at the moment she threatened and used force. That she changed her mind a short time later does not negate the earlier intent to retain the property. Indeed, the circumstances here explain defendant’s change of heart: defendant divested herself of the earrings only after it became clear that she was attracting attention and that the loss prevention officers would not simply let her walk away. Not surprisingly, defendant discarded the property as an afterthought, hoping that charges would not be pressed, or alternatively, weakening the case against her. The jury’s inference that defendant acted with the intent to retain the stolen property was not unreasonable and thus, the Third Department erred by invading the jury’s exclusive domain and in concluding that proof of defendant’s intent was insufficient as a matter of law. 2. Sound Public Policy Considerations Suggest that the Absence of Stolen Property in a Defendant’s Possession is not Necessary to Prove Intent The holding of the Third Department needlessly rewards those who have the fortune of using force to retain property and manage to unload the property prior to being 10 caught by the police. Based on this holding, the People can no longer prosecute an individual for robbery, if the stolen property is concealed at the time he resorts to force or threats of force and if he no longer possesses the property when he is arrested by the police minutes later. Broadly applied, even if this individual escapes police detention for a few days or longer, if the police fail to recover the stolen property on him or on his property, then the proof is legally insufficient as a matter of law. Surely the Legislature could not have intended such a result. And if the Legislature did intend such a result, the Legislature would have included an affirmative defense similar to the one available for robbery in the first degree (see Penal Law § 160.15[4]). Instead, the Legislature recognized that a completed petit larceny can give rise to robbery when an individual uses force or threats of force to retain the stolen property. The Third Department’s holding contravenes this legislative intent by requiring proof of an additional element not contemplated by the Legislature; namely, the People must show either that the defendant used force while openly possessing the stolen property or that the police recovered the stolen property from the defendant. Thus, given the sound public policy considerations against rewarding a robber who is able to discard or sell stolen property prior to capture, this Court should hold that the lack of proof of possession of stolen property at the time of capture does not make it, as the Third Department held, “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” (A 5). B. Defendant Used and Threatened to Use Force for the Purpose of Retaining Stolen Property 11 In light of these principles, the evidence in this case was sufficient for the jury to conclude that defendant threatened and used force against the loss prevention officers with the intent to retain the stolen property. To be sure, the facts presented at trial not only lent themselves to a reasonable conclusion that defendant used force for the purpose of retaining the earrings, but were far more naturally consistent with that conclusion as well. Whether a defendant’s use of force is used for the purpose of obtaining or retaining the property is a determination for the fact-finder (see Smith, 79 NY2d at 314- 15; People v Washington, 160 AD2d 205, 206 [1st Dept 1990]). Such a determination is supported by legally sufficient evidence so long as a rational fact-finder could have reached that conclusion (see Smith, 79 NY2d at 315). “In determining the legal sufficiency of the evidence of a criminal conviction [this Court] indulge all reasonable inferences in the People’s favor, mindful that a ‘jury faced with conflicting evidence may accept some and reject other items of evidence’” (see People v Carr-El, 99 NY2d 546, 547 [2002] quoting People v Ford, 66 NY2d 428, 437 [1985]). Defendant, along with her accomplices, stole several pairs of earrings and is guilty of at least petit larceny. Defendant was observed selecting items and surreptitiously concealing them under clothing. Once she was away from the jewelry area, defendant tore the cardboard backers off of the earrings and discarded the backers on the ground. Defendant exited the store when she was confronted by a loss prevention officer. Notably, defendant was never seen discarding the earrings, placing the earrings on layaway or paying for the earrings. Plainly, viewing the evidence in the light most favorable to the People and 12 resolving all reasonable inferences in the People’s favor, defendant was in possession of the earrings when she left the store and was confronted by loss prevention. This inference is only strengthened by defendant’s conduct when she was confronted by loss prevention. Once confronted, defendant used force in her effort to retain the earrings. She threatened Lisky by telling him not to touch her or she would “fuck [him] up.” She pounded on Lisky’s chest with her fists, pulled pens from her purse, and threatened to kill James, all while in control of the property. A short time later, when James and Lisky attempted to use force to stop defendant and her accomplices from leaving, defendant’s son pulled out a knife and threatened James. Meanwhile, defendant swiped at Lisky with pens when he tried to prevent her from leaving in her vehicle. Most importantly, defendant maintained control of the earrings when, at several points in time, she could have conveniently discarded them or paid for them. Defendant discarded the cardboard backers to the earrings, yet retained possession of the earrings. Defendant could have placed the earrings on layaway, but she did not. Defendant could have purchased the earrings prior to leaving the store, but she did not. In fact, defendant could have discarded the earrings on the ground when she was confronted, but she did not. From defendant’s continued retention of the earrings, the jury was clearly entitled to infer that she used force not just with the intent to escape, but for the purpose of retaining the stolen earrings. Specifically, if defendant desired merely to escape, she could have first discarded the earrings when Lisky initially asked her to stop and return to the store with the merchandise. Indeed, discarding the earrings would have made defendant’s escape more 13 likely, since Lisky might well have stopped to retrieve the earrings, giving him less reason to continue pursuing defendant and putting him farther behind defendant in any case. Instead, defendant held on to the earrings, hit Lisky in his chest and threatened to injure and kill Lisky and James. Defendant’s intent to keep the earrings was also evident because she never offered to give them back. She was fully able to verbalize any desire to return the earrings if the loss prevention officers would allow her to walk away. However, she did not make such an effort, indicating that her intent was to maintain her possession of the stolen property and use force to that end. That defendant escalated the situation by using force and threatening force in the face of calm requests that she return to the store, shows that defendant’s intent to retain the earrings was eminently clear. In sum, the People proved defendant’s guilt beyond a reasonable doubt, including that defendant threatened and used force with the intent of retaining the earrings, even though she was able to discard the stolen property after using such force and prior to capture. 14 CONCLUSION FOR THE AFOREMENTIONED REASONS, THE ORDER OF THE APPELLATE DIVISION SHOULD BE REVERSED, AND THE CASE REMANDED TO THE APPELLATE DIVISION FOR A DETERMINATION OF THE REMAINING ISSUES OF DEFENDANT’S APPEAL. RESPECTFULLY SUBMITTED, P. DAVID SOARES ALBANY COUNTY DISTRICT ATTORNEY ATTORNEY FOR APPELLANT ALBANY COUNTY JUDICIAL CENTER 6 LODGE STREET ALBANY, NEW YORK 12207 TEL. (518) 487-5460 Dated: July 18, 2013 By:_______________________ STEVEN M. SHARP Of Counsel