The People, Appellant-Respondent,v.Hazel E. Gordon, Respondent-Appellant.BriefN.Y.April 30, 2014To Be Argued By: Time Requested: Aaron A. Louridas Ten (10) minutes STATE OF NEW YORK – COURT OF APPEALS ──────── THE PEOPLE OF THE STATE OF NEW YORK, Appellant-Respondent, -against- HAZEL GORDON, Defendant-Respondent-Appellant. RESPONDENT-APPELLANT’S BRIEF APL-2013-00091 AARON A. LOURIDAS Attorney for Respondent-Appellant 25 Egmont Court Delmar, New York 12054 (518) 59-8-7695 HON. P. DAVID SOARES Attorney for Appellant-Respondent Albany County District Attorney Albany County Judicial Center 6 Lodge Street Albany, New York 12207 (518) 487-5460 Dated: October 23, 2013 ii TABLE OF CONTENTS TABLE OF CASES AND AUTHORITIES ................................................ iii PRELIMINARY STATEMENT .................................................................. 1 STATEMENT OF FACTS .......................................................................... 4 POINT I ......................................................................................................16 MS. GORDON’S CONVICTIONS MUST BE REVERSED AND THE INDICTMENT DISMISSED AS THE GUILTY VERDICTS WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE. .............16 CONCLUSION ..........................................................................................33 iii TABLE OF CASES AND AUTHORITIES Cases Jackson v Virginia, 443 US 307, 319 [1979] ...............................................16 People v Barnes, 50 NY2d 375, 381 [1980] ................................................29 People v Brandley, 254 AD2d 185 1 st Dept.1998], lv denied 92 NY2d 1028 [1998] ......................................................................................................18 People v Bynum, 68 AD3d 1348, 1339 [3 rd Dept. 2009], lv denied 14 NY3d 798 [2010] ...............................................................................................18 People v Contes, 60 NY2d 620 [1983] ........................................................16 People v Danielson, 9 NY3d 342, 349 [2007] .............................................16 People v Gonzalez, 64 AD3d 1038, 1041 [3 rd Dept. 2009], lv denied, 13 NY3d 1038 [2010] ...................................................................................29 People v Jennings, 69 NY2d 103, 118 [1986] .............................................27 People v Jensen, 86 NY2d 248, 252 [1995] ................................................27 People v Jones, 4 AD3d 622 [3 rd Dept. 2004], lv denied 2 NY3d 801 [2004] ................................................................................................................18 People v Kellam, 189 AD2d 1008, 1010 [3 rd Dept. 1993] ..................... 19, 23 People v Miller, 217 AD2d 970 [4 th Dept. 1995] ................................... 19, 23 People v Nixon, 156 AD2d 144 [1 st Dept. 1989], appeal dismissed, 76 NY2d 870 [1990]............................................................................... 19, 23 People v Santi, 3 NY3d 234, 246 [2004] .....................................................16 People v Smith, 79 NY2d 309, 315 [1992] ..................................................18 iv People v Steinberg, 79 NY2d 673, 685 [1992] ............................................29 People v Tafari, 68 AD3d 1540 [3 rd Dept. 2009] ........................................29 People v Williams, 84 NY2d 925, 926 [1994] .............................................16 People v Zindle, 48 AD3d 971, 973 [3 rd Dept. 2008], lv denied 10 NY3d 846 [2008] ......................................................................................................29 1 PRELIMINARY STATEMENT The instant appeals stem from the January 22, 2010, conviction of Defendant-Respondent-Appellant, Hazel Gordon (hereinafter referred to as “Ms. Gordon”) of one count of Robbery in the first degree, in violation of Penal Law § 160.15(3), a class B felony; one count of Robbery in the second degree, in violation of Penal Law § 160.10(2)(a), a class C felony; one count of Assault in the second degree, in violation of Penal Law § 120.05(2), a class D felony; and one count of Robbery in the second degree, in violation of Penal Law § 160.10(1), a class C felony, following a jury trial.1 A four-day jury trial involving Ms. Gordon and Ms. Wheatley took place from January 19, 2010 through January 22, 2010. Ms. Gordon was ultimately found 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.2 The sentencing hearing took place on April 23, 2010. The Honorable Dan Lamont (hereinafter referred to as the “Trial Court”) denied Ms. Gordon’s post-trial motion to set aside the verdict. The Trial Court then sentenced 1 Unless otherwise indicated, all references to the Appellant-Respondent’s Appendix are referred to as “A”. All references to the Respondent-Appellant’s Supplementary Appendix are referred to as “RA.” 2 Ms. Gordon’s co-defendant, Ms. Wheatley, was convicted of the lesser included offense of Petit Larceny. 2 Ms. Gordon to a determinate period of incarceration of 5 years, with 5 years of post-release supervision, on the Robbery in the first degree conviction; determinate periods of 3 ½ years of imprisonment, with 5 years of post-release supervision, on both of the convictions of Robbery in the second degree; and a determinate term of 2 years of imprisonment, with 3 years of post-release supervision, on the Assault in the second degree conviction. The sentences were to run concurrently. Ms. Gordon’s former counsel filed a Notice of Appeal dated April 23, 2010, which stated that she was appealing from the judgment of conviction and sentence of the Trial Court on April 23, 2010, and from each and every intermediate Order therein made. In a Memorandum and Order filed on December 6, 2012, the Supreme Court of New York, Appellate Division, Third Department (hereinafter referred to as the “Third Department”), modified, on the law, the judgment of the Trial Court, by reducing Ms. Gordon’s convictions for robbery in the first degree and robbery in the second degree under counts 1, 2 and 6 of the indictment to petit larceny; the Third Department remitted the matter to the Trial Court for resentencing; and noted that, as so modified, affirmed. The People filed an application for Leave to Appeal to the Court of Appeals challenging the above-mentioned reduction in convictions, and the undersigned cross-moved challenging all convictions. In Orders dated April 11, 2013, the 3 Honorable Eugene F. Piggott, Jr., Associate Judge of the Court of Appeals of the State of New York, granted both parties’ applications for Leave to Appeal to the Court of Appeals. This appeal addresses the issue of whether the convictions of Petit Larceny and Assault in the in the second degree were supported by sufficient evidence. This brief also address the People’s argument that the Third Department erred in finding that there was insufficient evidence as a matter of law to support the robbery convictions. 4 STATEMENT OF FACTS Albany County Indictment number 16-2610, dated July 21, 2009, charged Ms. Gordon with one count of Robbery in the first degree, in violation of Penal Law § 160.15(3), a class B felony; one count of Robbery in the second degree, in violation of Penal Law § 160.10(2)(a), a class C felony; one count of Assault in the second degree, in violation of Penal Law § 120.05(2), a class D felony; one count of Reckless Endangerment in the first degree, in violation of Penal Law § 120.25, a class D felony; one count of Resisting Arrest, in violation of Penal Law § 205.30, a class A misdemeanor; and one count of Robbery in the second degree, in violation of Penal Law § 160.10(1), a class C felony [A8-A13]. All of the counts involve alleged incidents that occurred on May 8, 2009 at Boscov’s in the Colonie Center Mall and the parking lot outside of the mall [A8-A13]. At trial, the People presented two witnesses, loss prevention officers Rayon James and Michael Lisky (employees of Boscov’s), in support of their allegations of theft and robbery. Their testimony establishes that Mr. James, while watching live, video surveillance footage of Boscov’s, came to focus on Ms. Gordon and Ms. Wheatley as they were selecting jewelry [A15-A16]. Mr. James stated that while watching the defendants via the camera system, he observed Ms. Gordon select “about two to three pieces of jewelry, and she held it close to her chest 5 where her bag was and took her hand and cover it with a piece of clothing . . .” [A16-A17]. He later stated that Ms. Gordon had three pieces of jewelry (earrings) and that Ms. Wheatley, who had a young child with her, had one piece of jewelry [A17]. Mr. James stated that as a result of these observations, he instructed Mr. Lisky to follow the defendants [A16]. Mr. James continued to watch the defendants via the surveillance cameras, and observed them leave the jewelry area and proceed to the back of the store by the infant and maternity departments, where he allegedly saw Ms. Gordon and Ms. Wheatley remove the earrings from the cardboard backings to which they were attached and drop said backings on the floor [A17-A18]. He testified that Mr. Lisky recovered the discarded cardboard backings and continued to follow the defendants, who proceeded to the layaway department on the second floor of Boscov’s and got on line [A19]. He stated that Ms. Gordon then left the layaway department and proceeded to the nearby young men’s department, where she selected some clothing [A19]. He alleged that the only merchandise that was actually placed on layaway by the defendants was bath towels [A37]. Mr. James asserted that the son of Ms. Gordon (hereinafter referred to as “K.G.”), then entered the store and approached Ms. Gordon, and they both subsequently proceeded to the layaway department “and they did a layaway 6 transaction, you know placed some stuff on layaway. And after a few minutes they left the store . . .” [A19]. Their testimony reveals that at some point during this event, Mr. Lisky went to the layaway department and was informed that Ms. Gordon and Ms. Wheatley had placed “towels or something” on layaway” [A47]. Most importantly, when pressed during cross-examination, Mr. Lisky conceded that he was uncertain as to what specific items Ms. Gordon and Ms. Wheatley had placed on layaway [RA22]. Indeed, Mr. Lisky admitted that he never conducted an investigation with the layaway department as to what items were placed on layaway [RA18-RA-19]. Therefore, it was possible that the earrings in question had been placed on layaway [RA22]. Mr. Lisky also admitted that when Ms. Gordon and Ms. Wheatley left the layaway department, neither of them could be seen holding any items from the store [RA23]. Mr. James readily conceded that while tickets relative to the layaway transactions would have been generated by Boscov’s, he never retrieved such evidence and none was presented at trial [RA2]. Importantly, he admitted that he never personally checked with the layaway department to see what items Ms. Gordon and Ms. Wheatley had placed on hold, and defiantly asserted that “[t]here was no need for that” [RA1]. Further, the People failed to call any personnel from 7 the layaway department as witnesses to testify about the transactions in question. Significantly, Mr. James admitted that none of the allegedly stolen earrings were ever recovered [RA8]. He never went to the area of the store where the jewelry was located to check if same had been returned, and he never directed an inventory of the earrings in question [RA16]. Further, he also admitted that the incident report that he completed reflected different brand names for the earrings in question than the backers that were recovered by Mr. Lisky [RA12-RA16]. While he theorized that at some point in Boscov’s, Ms. Gordon had passed the earrings in question to her son, K.G., he fully admitted that this was an assumption and that there was no actual evidence of a transfer [RA6-RA7]. Mr. James testified that the approximate value of the three pairs of earrings that were allegedly taken was $50.00 or less [RA11]. The best evidence of what took place in Boscov’s was the video surveillance CD’s that were received in evidence at trial [A33; People’s Exhibits 1-a and 1-b]. Incredibly, People’s Exhibit 1-a was entitled “Female Jewelry Thieves” and People’s Exhibit 1-B was entitled “Theives” (sic) [People’s Exhibits 1-a and 1-b]. These titles can readily be seen when opening the file to play the videos [People’s Exhibits 1-a and 1-b]. The surveillance videos show Ms. Gordon and Ms. Wheatley, at one point, 8 looking at earrings, removing them from a retail rack, and physically examining said earrings [People’s Exhibit 1-a at 12:47-12:533]. At one point, it appeared that Ms. Gordon, who was carrying a bundle of clothing at the time, placed the earrings close to her chest, with the clothes on top of the earrings to secure them [People’s Exhibit 1a]. At no point in either video can she be seen placing the earrings inside of her clothing or in any other hidden area [People’s Exhibits 1-a and 1-b]. The surveillance videos show Ms. Gordon browsing and walking in various departments of Boscov’s carrying the above-mentioned items of clothing [People’s Exhibit 1-a]. At one point while in the infant/maternity department, the view of Ms. Gordon is briefly obscured by a wall; notably, the vicinity in question appeared to be a changing area [People’s Exhibit 1-a]. On at least four occasions, the video footage shows Ms. Gordon in the layaway department, talking to employees of that department and conducting transactions [People’s Exhibits 1-a and 1-b]. At one point, she made a transaction with an employee, to whom she provided the same bundle of clothing, at the very least, that she appeared to have when she secured the earrings [People’s Exhibit 1- a at 13:07]. When she left the layaway counter, she no longer had any items in her possession [People’s Exhibit 1-a at 13:07]. It is unclear whether the earrings were 3 These are the times reflected in the bottom left corner of the video, immediately following the date; i.e. “5/8/09”. 9 also placed on layaway at that time as they cannot be seen at any other time in the video [People’s Exhibit 1-a]. Ms. Gordon appeared in the layaway department at least three other times; on one occasion, after returning with K.G., she can be seen carrying other clothes [People’s Exhibit 1-a at 13:14]. On another occasion, it appeared that she was placing towels on layaway; Ms. Wheatley also can be clearly seen with towels at that time conducting a layaway transaction [People’s Exhibit 1-a at 13:18]. On the last occasion, Ms. Gordon appears to inspect a necklace or some type of pendant and then take it to the layaway department, where she performs a layaway transaction [People’s Exhibit 1-b at 13:25]. Each time Ms. Gordon leaves the layaway department, the video reveals that no other store items are visible in her possession [People’s Exhibits 1-a and 1-b; RA23]. Importantly, the surveillance video in no way demonstrates that a theft ever occurred [People’s Exhibits 1-a and 1-b]. As noted above, it is unclear where the earrings in question ended up; i.e., they very likely could have been placed on layaway, placed in another area of the store after Ms. Gordon and Ms. Wheatley decided not to purchase them, or placed back on the rack that they were originally displayed on, etc. [People’s Exhibits 1-a and 1-b]. The video reveals that close to 40 minutes expired from the time Ms. Gordon and Ms. Wheatley originally picked 10 up the earrings in question, until they actually exited the store [People’s Exhibits 1- a and 1-b]. Significantly, no exchange of the earrings from Ms. Gordon to Ms. Wheatley or K.G. is ever captured on the video [People’s Exhibits 1-a and 1-b]. Upon exiting the store, Ms. Gordon, Ms. Wheatley and K.G. were immediately stopped by Mr. Lisky [A20, A37, A48]. Mr. James arrived to the scene shortly thereafter, and he acknowledged that both he and Mr. Lisky were dressed in plain clothes [A19-A20, RA3]. Mr. Lisky asserted that when he identified himself as a store employee and asked them to return to the store “because they had some merchandise that wasn’t paid for,” Ms. Gordon was understandably upset and protested that she had not stolen any items[A48]. Tellingly, Mr. Lisky admitted that he never saw Ms. Gordon steal any merchandise [RA20]. The loss prevention officers conceded that Mr. Lisky physically blocked Ms. Gordon’s path and placed his hands on her when she attempted to leave [A49-A50, RA4-RA5]. At some point, Mr. James pushed Ms. Gordon away from Mr. Lisky [A50]. After being confronted by these unjustified acts of force, Ms. Gordon attempted to defend herself by pulling out two pens and swiping them at Mr. Lisky and Mr. James [A50, RA4-RA5]. Immediately after Ms. Gordon brandished her pens, Mr. James and Mr. 11 Lisky backed away from her, and Mr. James called the police [A23, A50, RA17]. Mr. James and Mr. Lisky proceeded to follow Ms. Gordon, Ms. Wheatley and K.G. as they walked toward the exit of the Colonie Center Mall [A23-A24, A50]. Significantly, Mr. Lisky admitted that the defendants casually walked toward the mall exit and did not attempt to run away from them [RA21]. Both Mr. James and Mr. Lisky conceded that when exiting the doors to the mall, Mr. Lisky, again, initiated physical contact with Ms. Gordon as he grabbed her, “put her into an arm bar, [and] brought her down to the ground” [A25, RA17]. Although the police had already been called and were en route to the scene, the loss prevention officers, who were in plain clothes, admitted that they attempted to handcuff and apprehend Ms. Gordon at that time [A25, RA17]. Sometime during this assault, K.G. attempted to come to the aid of his mother [A25, RA17]. Mr. Lisky believed that he observed K.G. approaching Mr. James with “a clench fist,” while Mr. James stated that K.G. was brandishing a knife” [A25, RA17]. Mr. James stated that when he faced K.G., “[h]e just grab his knife and run towards the cemetery mall area . . . I give chase after him. And [Mr.] Lisky was left with the [defendants]” [A25]. Mr. James testified that he chased K.G. outside of the mall in an area, which borders a cemetery; he claimed that while doing so, he observed K.G. put his hands 12 in his pocket and then “like tossing things . . . into the cemetery while he was running . . .” (emphasis added) [A29-A30]. Notably, Mr. James never identified these “things” as store merchandise [A29-A30]. He claimed that he also observed K.G. throw the knife into the adjacent cemetery [A30]. Importantly, Mr. James admitted during cross-examination that nowhere in his written statement to the police did he indicate that he had observed K.G. throwing items into the cemetery [RA9-RA10]. At the same time that Mr. James was pursuing K.G., Mr. Lisky followed Ms. Gordon and Ms. Wheatley to the mall parking lot toward their vehicle [A51-A52, RA17]. Despite photographing the license plate of their vehicle and having knowledge that the police were on their way, Mr. Lisky, again, decided to initiate force by attempting to remove Ms. Gordon’s keys from the ignition of her vehicle [A53]. Mr. Lisky stated that in response, Ms. Gordon “swiped at me again with the pens. So I then slammed her door. She took off . . .” [A53]. Mr. Lisky confirmed that at the time he was trying to remove Ms. Gordon’s keys from the ignition, another employee of Boscov’s, Lance Pappas, just “showed up at the car” and went to the passenger side door and “was just standing there” [A54]. He stated that he never requested assistance from Mr. Pappas, who was not a member of the store’s loss prevention team [A54]. However, Mr. Pappas’ testimony contradicts 13 Mr. Lisky’s statement inasmuch as Mr. Pappas unequivocally stated that Mr. Lisky specifically asked for his help in apprehending the defendants [A75-A78]. Ms. Gordon then proceeded to drive her vehicle in an attempt to exit the parking lot, and Mr. Pappas conceded during cross-examination that he did run through the parking lot in pursuit of the defendants’ vehicle [RA24-RA25]. Significantly, when confronted with his written statement made to the police, Mr. Pappas admitted that he told them that he did, in fact, get in front of the vehicle to stop the defendants [RA26-RA27]. He further acknowledged that his intention in getting in front of the vehicle was to stop the defendants in order to apprehend them [RA28]. Although a few witnesses testified that Ms. Gordon swerved her vehicle into Mr. Pappas, the only uninterested witness, Mr. Kelly, readily conceded that his memory was hazy and that it appeared that Mr. Pappas was trying to stop the vehicle [RA30-RA31]. Mr. Kelly stated that Mr. Pappas “was walking towards the car, but the car did also hit him” [RA29]. Mr. Pappas stated that the side-view mirror of the car on the driver’s side came in contact with his lower right rib area [A82]. He stated that he then fell sideways to the ground [A82-A83]. Mr. Pappas was taken to the hospital, and as a result of this incident he sustained “a bruised wrist and bruised ribs” [A83-A85]. 14 Immediately after the incident in the parking lot, Mr. Lisky observed the defendants leaving the parking lot and driving toward Central Avenue in Colonie, New York [A60]. Around that same time, Mr. James, who was still in pursuit of K.G., heard police sirens and observed the police apprehend K.G. near Central Avenue [A30]. Mr. James stated that while speaking to the police, he observed Ms. Gordon and Ms. Wheatley arrive at the scene in their vehicle [A30]. Mr. Gordon was arrested by the police in the same area that K.G. was apprehended [A31]. Ms. Gordon was ultimately found 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.4 The sentencing hearing took place on April 23, 2010 [A100- A102]. Judge Lamont sentenced Ms. Gordon to a determinate period of incarceration of 5 years, with 5 years of post-release supervision, on the Robbery in the first degree conviction; determinate periods of 3 ½ years of imprisonment, with 5 years of post-release supervision, on both of the convictions of Robbery in the second degree; and a determinate term of 2 years of imprisonment, with 3 years of post-release supervision, on the Assault in the second degree conviction [A115- A117]. The sentences were to run concurrently [A117]. 4 Ms. Gordon’s co-defendant, Ms. Wheatley, was convicted of the lesser included offense of Petit Larceny. 15 Ms. Gordon’s former counsel filed a Notice of Appeal dated April 23, 2010, which stated that he was appealing from the judgment of conviction and sentence of the Trial Court on April 23, 2010 and from each and every intermediate Order therein made [A1]. In a Memorandum and Order filed on December 6, 2012, the Third Department, modified, on the law, the judgment of the Trial Court, by reducing Ms. Gordon’s convictions for robbery in the first degree and robbery in the second degree under counts 1, 2 and 6 of the indictment to petit larceny; the Third Department remitted the matter to Trial Court for resentencing; and noted that, as so modified, affirmed [A4-A7]. The People filed an application for Leave to Appeal to the Court of Appeals challenging the above-mentioned reductions in convictions, and the undersigned cross-moved challenging all convictions. In Orders dated April 11, 2013, the Honorable Eugene F. Piggott, Jr., Associate Judge of the Court of Appeals of the State of New York, granted both parties’ applications for Leave to Appeal to the Court of Appeals [A2-A3]. 16 POINT I MS. GORDON’S CONVICTIONS MUST BE REVERSED AND THE INDICTMENT DISMISSED AS THE GUILTY VERDICTS WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE. "'Legally sufficient evidence' [is] competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof" (CPL § 70.10[1]). A court's role in a legal sufficiency review is limited to determining whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (Jackson v Virginia, 443 US 307, 319 [1979]; see also, People v Contes, 60 NY2d 620 [1983]). As long as the evidence adduced at trial establishes "'any valid line of reasoning and permissible inferences [that] could lead a rational person' to convict, . . . the conviction survives a sufficiency review" (People v Santi, 3 NY3d 234, 246 [2004], quoting People v Williams, 84 NY2d 925, 926 [1994]). "A sufficiency inquiry requires a court to marshal competent facts most favorable to the People and determine whether, as a matter of law, a jury could logically conclude that the People sustained its burden of proof" (People v Danielson, 9 NY3d 342, 349 [2007]). 17 It is submitted that the Third Department properly found that there was legally insufficient evidence to support the Robbery convictions. We also submit that Ms. Gordon’s convictions of Petit Larceny and Assault in the Second degree were not supported by legally sufficient evidence as the People failed to sustain its burden of proof. ROBBERY CONVICTIONS (Counts 1, 2 & 6) For a conviction of Robbery in the first degree, in violation of Penal Law § 160.15(3) [Count 1], the statute sets forth that a person is guilty of this crime: 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 uses or threatens the immediate use of a dangerous instrument. With regard to a conviction of Robbery in the second degree, in violation of Penal Law § 160.10(2)(a) [Count 2], the statute sets forth that a person is guilty of this crime: 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 causes physical injury to any person who is not a participant in the crime. As to a conviction of Robbery in the second degree, in violation of Penal Law § 160.10(1) [Count 6], the statute mandates that a person is guilty of this 18 crime “when he forcibly steals property and when he is aided by another person actually present.” Forcible stealing is defined as "us[ing] or threaten[ing] the immediate use of physical force upon another person for the purpose of . . . [p]reventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking" (Penal Law § 160.00[1]). This Court has opined that “the applicable culpability standard -- intent -- require[s] evidence that, in using or threatening physical force, defendant's "conscious objective" was either to compel his victim to deliver up property or to prevent or overcome resistance to the taking” (People v Smith, 79 NY2d 309, 315 [1992], quoting Penal Law § 15.05[1]; § 160.00[1], [2]). Appellate Courts have consistently found that “[w]hile force merely used in order to escape will not support a robbery, the jury may infer that, when a defendant is in possession of stolen property, the use of such force is to retain control of the property” (People v Bynum, 68 AD3d 1348, 1339 [3 rd Dept. 2009], lv denied 14 NY3d 798 [2010]; see, People v Jones, 4 AD3d 622 [3 rd Dept. 2004], lv denied 2 NY3d 801 [2004]; People v Brandley, 254 AD2d 185 1 st Dept.1998], lv denied 92 NY2d 1028 [1998]). Further, Appellate Courts have also repeatedly found that “[i]n the absence of evidence that defendant remained in possession of 19 the stolen property at the time he threatened the use of physical force, 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 Kellam, 189 AD2d 1008, 1010 [3 rd Dept. 1993]; see, People v Miller, 217 AD2d 970 [4 th Dept. 1995]; People v Nixon, 156 AD2d 144 [1 st Dept. 1989], appeal dismissed, 76 NY2d 870 [1990]). The record demonstrates that the People failed to prove beyond a reasonable doubt that Ms. Gordon’s conscious objective in using or threatening to use physical force was to prevent or overcome resistance to the retention of the earrings. Indeed, none of the evidence produced by the People demonstrated that Ms. Gordon, Ms. Wheatley or K.G. possessed any stolen property at the time that Ms. Gordon threatened or used physical force at the Boscov’s exit. At best, Mr. James’ testimony establishes that Ms. Gordon selected “two to three pieces of jewelry, and she held it close to her chest where her bag was and took her hand and covered it with a piece of clothing . . .” [A16-A17]. He also claimed that he observed the defendants remove the earrings from the cardboard backings to which they were attached and drop said backings on the floor while in the infant/maternity department [A17-A18]. Tellingly, Mr. James admitted that 20 when later filling out a Boscov’s incident report about what had happened, he documented that the defendants had taken three sets of earrings and noted their brand names as “Monet,” which did not match with the brand names of the cardboard backings that had been retrieved by Mr. Lisky (i.e., “Napier” and “Ashley Collection”) [RA12-RA15]. Notably, the video evidence, which is somewhat grainy in nature, does not conclusively show that the defendants removed these backers from the earrings and discarded them on the floor [People’s Exhibit 1-a at 12:56-13:00]. The video does show that the defendants left the infant/maternity area at 13:00 and that Ms. Gordon subsequently visited the layaway department and conducted separate transactions on four occasions [People’s Exhibits 1-a and 1-b]. Each time she left the layaway area, Ms. Gordon can be seen with no store items in her possession [People’s Exhibit 1-a]. The video evidence also shows that the defendants and K.G. exited Boscov’s approximately thirty minutes after they left the infant/maternity section [People’s Exhibit 1-a at 13:29:30]. The video evidence never shows Ms. Gordon placing the earrings in her clothes, hiding them on her person in any manner or transferring them to K.G. or Ms. Wheatley [People’s Exhibits 1-a and 1-b]. Further, while Mr. James assumed that Ms. Gordon had transferred the earrings to K.G. at some point while in Boscov’s, he candidly 21 admitted that this was just an assumption and that he had no proof of this [RA6- RA7]. The video evidence is inconclusive as to where the earrings in question ended up; i.e., they could have been placed on layaway, placed in another area of the store after the defendants decided not to purchase them, or placed back on the rack that they were originally displayed on, etc. Mr. James conceded that Ms. Gordon had conducted a layaway transaction after he observed her select the earrings in question [A19, A37]. Significantly, he admitted that while a ticket relative to the defendants’ layaway transaction would have been generated by Boscov’s, he did not bring any records regarding said transaction to court and never retrieved said records from the layaway department [RA2]. Further, Mr. James admitted that at no time did he go to the jewelry area of Boscov’s and direct a clerk to run an inventory of the earrings [RA16]. Although Mr. James testified that he had seen K.G. throwing unidentified items from his pocket into the cemetery area while leaving the area, Mr. James acknowledged that his written statement was completely devoid of this allegation [RA9-RA10]. Most significantly, Mr. James readily admitted that none of the allegedly stolen merchandise was ever recovered and that he could not be sure that K.G. had any stolen merchandise on his person at the time in question [RA8]. Mr. Lisky’s testimony, at best, shows that Mr. James directed him to follow 22 the defendants, and that he secured cardboard backings of some earrings [A39- A48]. Importantly, Mr. Lisky readily admitted that he did not personally observe the defendants remove any cardboard backings from the earrings and that he never saw Ms. Gordon steal any merchandise [RA18-RA20]. Mr. Lisky also conceded that he was uncertain of what specific items that the defendants had placed on layaway [RA22]. He admitted that when the defendants left the layaway department, neither of them were holding anything [RA23]. Notably, the People failed to produce any witnesses from the layaway department and the jewelry area, so it is impossible to determine whether or not the earrings in question were placed on layaway or returned to their original display area, which are both distinct possibilities. Viewing the evidence in the light most favorable to the People, Mr. James testified that approximately thirty minutes before the defendants left the store, Ms. Wheatley and Ms. Gordon removed cardboard backers from the earrings in question. However, the People proffered absolutely no evidence whatsoever to show that either woman or K.G. possessed the earrings at the time they exited Boscov’s. To the contrary, the video evidence shows that the two women continued to shop and conducted numerous layaway transactions in which they placed various items on layaway. As they People failed to produce any witnesses 23 with relevant knowledge of these layaway transactions or any receipts of same, it remains a very real possibility that the earrings in question were also placed on layaway. Regardless, the People failed to produce any testimonial, documentary or video evidence showing that the defendants remained in possession of the earrings at the time that Ms. Gordon used force while struggling with Mr. Lisky and James immediately after exiting Boscov’s. As such, it is impossible to conclude beyond a reasonable doubt that Ms. Gordon’s conscious objective in threatening to use physical force was to prevent or overcome resistance to the retention of the earrings (see, People v Kellam, 189 AD2d 1008 [3 rd Dept. 1993]; People v Miller, 217 AD2d 970 [4 th Dept. 1995]; People v Nixon, 156 AD2d 144 [1 st Dept. 1989], appeal dismissed, 76 NY2d 870 [1990]). The Nixon case is similar to the case in question relative to the issue of forcible stealing. In Nixon, roses were taken by the defendant from a complainant's stand without the use of any force (id.). The complainant chased the defendant, a scuffle ensued, and a nearby police officer observed the events and intervened (id. at 145). The police officer, the prosecution’s sole witness, could not recall whether the defendant continued in possession of the roses as he fought with the complainant, and the roses were not recovered from the defendant. Id. In pertinent part, the First Department opined: 24 There was no evidence that the defendant remained in possession of the stolen roses at the time of the scuffle. Without such evidence it is impossible to conclude with any measure of certainty, much less beyond a reasonable doubt, that the force employed by the defendant had as its purpose preventing or overcoming resistance to the retention of the property. Moreover, under the circumstances, it would appear highly improbable that defendant's use of force was accompanied by any intention to assert or reassert control over the roses. He had just been tackled by the complainant and a nearby police officer was in pursuit having already made his presence known by yelling to the defendant to stop. The defendant would not have wanted to retain or regain the incriminating roses with the complainant literally upon him and the police not far behind. It would seem far more likely that whatever force was used by the defendant was intended solely to facilitate his escape or was merely a reaction to his having been knocked down with considerable force by the complainant. 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 (id. at 146). As in Nixon, there is no evidence in the case at bar showing that the defendants remained in possession of the earrings at the time they exited Boscov’s and were confronted by the loss prevention personnel. Mr. James’ alleged observation of Ms. Gordon and Ms. Wheatley removing the backers of the earrings 25 thirty minutes prior to the time they left the store is much too attenuated to constitute proof of possession of the earrings at the time they left the store. Indeed, the People failed to produce any evidence as to the location of the earrings at the time that the defendants exited the store. The force employed by Ms. Gordon, as with the defendant in Nixon, was solely intended to facilitate her escape from the assaultive actions of Mr. Lisky and Mr. James. Lastly, the People’s argument that “proof of intent to retain is not insufficient as a matter of law even though no stolen property is recovered” is misguided. As the defendants were not found in possession of the stolen earrings, the People were not entitled to the inference that Ms. Gordon’s use of such force was to retain control of the property (see, People v Bynum, 68 AD3d 1348 [3 rd Dept. 2009]). However, the fact that the People were not entitled to such inference does not end the sufficiency of evidence analysis. The determinative inquiry in the case at bar is whether the People satisfied their burden of producing evidence that defendant remained in possession of the stolen property at the time she threatened or used physical force. As noted above, the People failed to satisfy their burden in this regard. Therefore, it is submitted that the Third Department properly found that there was insufficient evidence to convict Ms. Gordon of the crimes of Robbery in 26 the first degree and Robbery in the second degree. PETIT LARCENY As to the class A misdemeanor of Petit Larceny, the statute sets forth that a person is guilty of this crime “when he steals property” (Penal Law § 155.25). A person steals property and 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[1]). "To 'deprive' another of property means (a) to withhold it or cause it to be withheld from him permanently or for so extended a period or under such circumstances that the major portion of its economic value or benefit is lost to him, or (b) to dispose of the property in such manner or under such circumstances as to render it unlikely that an owner will recover such property" (Penal Law § 155.00[3]). "To 'appropriate' property of another to oneself or a third person means (a) to exercise control over it, or to aid a third person to exercise control over it, permanently or for so extended a period or under such circumstances as to acquire the major portion of its economic value or benefit, or (b) to dispose of the property for the benefit of oneself or a third person" (Penal Law § 155.00[4]). The "taking" element of a larceny is satisfied where the defendant "exercised 27 dominion and control over the property for a period of time, however temporary, in a manner wholly inconsistent with the owner's continued rights" (People v Jennings, 69 NY2d 103, 118 [1986]). In contrast, “[t]he intent to ‘deprive’ or ‘appropriate’ prescribed in section 155.05 is satisfied by the exertion of "'permanent or virtually permanent control over the property taken'" (People v Jensen, 86 NY2d 248, 252 [1995], quoting People v Jennings, supra. at 118 [1986]). Viewing the evidence in the light most favorable the People, at best, the taking element of the crime of larceny was established here. This finding could arguably be based on Mr. James’ contention that he observed Ms. Gordon removing the cardboard backers from the earrings while in the infant/maternity section of Boscov’s. What is lacking from the People’s proof is evidence demonstrating an intent to deprive or to appropriate. It appears that the People’s theory of the case was that Ms. Gordon wrongfully took the earrings, presumably for her own benefit (i.e., she intended to appropriate the earrings to herself). The trial record, however, demonstrates that the People failed to show that Ms. Gordon or any of her alleged accomplices exercised permanent or virtually permanent control over the earrings. As discussed above, the video evidence shows that Ms. Gordon first 28 examined and took the earrings off of the display rack between 12:47 p.m. to 12:53 p.m. [People’s Exhibit 1-a]. Further, the video shows that approximately fifteen to twenty minutes later, she went to the layaway department and conducted her first transaction [People’s Exhibit 1-a at 13:07]. It is very possible that she placed the earrings on layaway at that time. Regardless, there is absolutely no evidence demonstrating that she or any of her alleged accomplices actually possessed the earrings after that time. Indeed, the video shows Ms. Gordon leaving the layaway department with no store merchandise visible on her person [People’s Exhibit 1-a at 13:07]. As such, the People failed to show that Ms. Gordon or any of her alleged accomplices exercised permanent or virtually permanent control over the earrings. Therefore, it is submitted that there was insufficient evidence to convict Ms. Gordon of the crime of Petit Larceny. ASSAULT IN THE SECOND DEGREE (Count 3) For a conviction of Assault in the second degree, in violation of Penal Law § 120.05(2), a class D felony [Count 3], the statute sets forth that a person is guilty of this crime when, With intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument. 29 Evidence of Assault in the second degree is sufficient as a matter of law, when viewing the evidence presented in the light most favorable to the People, any rational trier of fact could have found that the defendant intended to injure another person, and that he caused such injury by means of a deadly weapon (see, People v Tafari, 68 AD3d 1540 [3 rd Dept. 2009]). A defendant acts intentionally when his or her "conscious objective is to cause [a] result or to engage in such conduct" (Penal Law § 15.05[1]). “[A] defendant's intent to cause physical injury . . . may be inferred [from his] conduct and the surrounding circumstances" (People v Gonzalez, 64 AD3d 1038, 1041 [3 rd Dept. 2009], lv denied, 13 NY3d 1038 [2010], quoting People v Zindle, 48 AD3d 971, 973 [3 rd Dept. 2008], lv denied 10 NY3d 846 [2008]). A jury is entitled to infer that a defendant intended the natural and probable consequences of his or her acts (see, People v Steinberg, 79 NY2d 673, 685 [1992]). The element of intent is rarely proved "by an explicit expression of culpability by the perpetrator" (People v Barnes, 50 NY2d 375, 381 [1980]). Further, "[c]ompeting inferences to be drawn [regarding the defendant's intent], if not unreasonable, are within the exclusive domain of the finders of fact, not to be disturbed by this Court” (id.). The Trial Court correctly noted that physical injury is defined as 30 “impairment of physical condition or substantial pain,” and that the term dangerous instrument means any instrument, including a motor “vehicle which, under the circumstances in which it is used, attempted to be used or threatened to be used is readily capable of causing death or other serious physical injury” [RA34].5 The Trial Court also properly defined intent as “conscious objective or purpose” [RA33]. The Trial Court elaborated that “a person acts with the intent to cause physical injury to another person when that person’s conscious objective or purpose is to cause physical injury to another” [RA34]. The People failed to satisfy their burden of proving that Ms. Gordon’s conscious objective was to cause physical injury to Mr. Pappas. As noted above, after Mr. Lisky assaulted Ms. Gordon at the exit to the mall, he continued to follow her and Ms. Wheatley. Ms. Lisky admitted that after Ms. Gordon entered her vehicle, he, again, initiated physical contact by trying to remove her keys from the ignition. At that time, Mr. Pappas, who was not a member of the Boscov’s loss prevention team, arrived at Ms. Gordon’s vehicle either on his own or after being summoned by Mr. Pappas. It is undisputed that Ms. Gordon was frantically trying to avoid Mr. Pappas due to his continuous assaultive behavior from the time of their first interactions 5 As noted in our prior brief that was submitted to the Third Department, we do not take issue with the fact that Mr. Pappas sustained a “physical injury” or that the vehicle in question constitutes a “dangerous instrument.” 31 right outside of Boscov’s. Ms. Gordon proceeded to drive her vehicle in an attempt to exit the parking lot, and Mr. Pappas admitted that he did run through the parking lot in pursuit of the defendants’ vehicle [RA24-RA25]. Mr. Pappas conceded that he previously acknowledged to the authorities that he did get in front of the Ms. Gordon’s vehicle to stop the defendants [RA26-RA27]. He further acknowledged that his intention in getting in front of the vehicle was to stop the defendants in order to apprehend them [RA28]. Mr. Kelly also corroborated this fact inasmuch as he testified that it appeared that Mr. Pappas was trying to stop Ms. Gordon’s vehicle [RA30-RA31]. The events immediately preceding the accident with Mr. Pappas demonstrate that Ms. Gordon’s conscious objective in driving quickly through the parking lot was to escape the continuing assaults of Mr. Lisky. Indeed, Mr. Lisky, an imposing figure in plain clothes, initiated physical force with Ms. Gordon when he confronted her outside of Boscov’s, when he attempted to subdue her at the mall exit, and when he attempted to remove her keys from the ignition of her vehicle in the parking lot. Immediately prior to the events at Ms. Gordon’s vehicle, Ms. Pappas had no involvement with Ms. Gordon. Thus, she had no identifiable motive to injure him. Mr. Pappas, either by his own choice or upon being summoned by Mr. Lisky, 32 joined in this situation in violation of Boscov’s policy as he was not part of their loss prevention team. Mr. Pappas’ own actions served to make a volatile situation even more dangerous for those involved and the public in general. Mr. Pappas’ actions in running after and getting in front of Ms. Gordon’s vehicle solely caused this collision. The actions of Mr. Lisky and Mr. Pappas were completely reckless and unwarranted, especially when considering the fact that the police were en route to the scene. The evidence shows that Ms. Gordon merely wanted to escape the reckless and assaultive actions of these Boscov employees. As to Ms. Gordon’s intent, while competing inferences can possibly be drawn from the testimony of witnesses stating that she swerved into Mr. Pappas, it is submitted that any inferences of intent to injure Mr. Pappas are unreasonable. As noted previously, Mr. Pappas, himself, admitted that he ran after and physically placed himself in front of Ms. Gordon’s vehicle for the purpose of stopping and apprehending the defendants. Mr. Kelly also corroborated that it appeared that Mr. Pappas was trying to stop Ms. Gordon’s vehicle. As such, this evidence demonstrates that Mr. Pappas’ reckless actions solely caused this collision. Therefore, it is submitted that there was insufficient evidence to convict Ms. Gordon of the crime of Assault in the second degree. 33 CONCLUSION Based upon the foregoing, it is respectfully submitted that the Third Department properly found that there was insufficient evidence to convict Ms. Gordon of the crimes of Robbery in the first degree and Robbery in the second degree. That portion of the Order of the Third Department should be affirmed. However, we respectfully submit that the convictions of Petit Larceny and Assault in the second degree should be reversed and the indictment dismissed as the guilty verdicts were not supported by sufficient evidence. DATED: October 23, 2013 By: ______________________________ AARON A. LOURIDAS Attorney for Respondent-Appellant 25 Egmont Court Delmar, NY 12054 (518) 598-7695