The People, Respondent,v.Jafari Lamont, Appellant.

Brief

N.Y.March 26, 2015

STATE OF NEW YORK Brief Completed: To Be Argued By: Time Requested: August 21, 2014 Erin Tubbs 10 Minutes COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, -vs- JAFARI LAMONT, Respondent, Defendant-Appellant. BRIEF FOR RESPONDENT APL- 2014-00072 SANDRA DOORLEY District Attorney of Monroe County Attorney for Respondent By: Erin Tubbs Assistant District Attorney Suite 832 Ebenezer Watts Building Rochester, New York 14614 Phone: (585) 753-535 Fax: (585) 753-4576 TABLE OF AUTHORITIES QUESTION PRESENTED TABLE OF CONTENTS PRELIMINARY STATEMENT STATEMENT OF FACTS ARGUMENT CONCLl:JSION Defendant's attempted robbery conviction is based on legally sufficient evidence. - 1- ii, iii 1 2 3 6 15 TABLE OF AUTHORITIES CASES Jackson v Virginia, 443 US 307 (1979) ............................................ 6 MatterofAmarA., 172AD2d426(lstDept J991),/vdenied79NY2d 751 (1991) ........ 13 People v Bailey,13 NY3d 67,71-72 (2009) ........................................ 12 People v Bleakley, 69 NY2d 490 ( 1987) . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . .. . . . 6 People v Bracey, 41 NY2d 296 (1977) .................................. 6, 9, 10, 11, 14 People v Calabria, 3 NY3d 80 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 People v Castillo, 47 NY2d 270 (1979) ......................... ... ....... ....... . 12 People v Contes, 60 NY2d 620 (1983) .. . .......................................... 6 People v Grassi, 92 NY2d 695 ( 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 People v Lamont, 113 AD3d 1069 (2014) ............... . · ............... .. 9, 10, 11, 14 People v Mahboubian, 74 NY2d 174 (1989) ........................................ 8 People v Mateo, 13 AD3d 987 (3rd Dept 1984), lv denied 5 NY3d 883(2005) ............. 12 People v Maleo, 2 NY3d 383 (2004) .. . . .. . . . . . .. . . .. . .. . . . . . .. . . . . . .. . .. . . .. . . . .. 6 People v Miller, 87 NY2d 211 (1995) ... .. ......... ... ...... ... ................... 7 People v Naradzay, 11 NY 3d 460 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 1 0 People v Reed, 22 NY3d 530 (2014) ........................................... 6, 13 People v Rodriguez, 17 NY 3d 486 (20 11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 People v Webb, 108 AD3d 1064 (4th Dept 2013), affd23 NY3d 937 (2014) .... .. .. . ..... 13 People v Wong, 81 NY2d 600 (1993) ........................ .. ........ ... ........ 12 STATUTES CPL § 330.30 .... . .... .. ..... .. ... . . . ............... . ....... . ..... .... ........ 5 Penal Law § 110.00 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Penal Law§ 160.10 (2) ... . . . .. . .. .. .. .. . ... . .. . ... .. . .. . ..... .. . . ... . ... . .... 2, 8 Penal Law§ 160.10 (1) . . . ... ...... .. . .... . . ... . . . . . . .. . . . .. . . .. .. . .. . ... .... . . 2,7 -iii- Question: Answer of the Trial Court: Answer of the Appellate Division: QUESTION PRESENTED Was defendant's attempted robbery conviction supported by legally sufficient evidence of his intent to steal? Yes. Yes. PRELIMINARY STATEMENT Defendant Jafari Lamont was convicted, upon a non jury verdict rendered on July 16, 2009, of two counts attempted robbery in the second degree (Penal Law§§ 110.00, 160.10 [1] and [2] [b]) in Monroe County Court (Patricia D. Marks, J.) (bound record on appeal [hereinafter no preflix] 11, 100-101). Defendant was sentenced, as a second felony offender, on August 3, 2009 to concurrent determinate terms of seven years of incarceration with five years of postrelease supervision (3, 6, 148). By order and memorandum decision dated January 3, 2014, the Supreme Court, Appellate Division, Fourth Department, affirmed the judgment of conviction (5-10). Justices Fahey and Peradotto wrote a dissenting opinion. The Hon. Erin M. Peradotto, Associate Justice of the Appellate Division, Fourth Department granted leave to appeal to this Court (2-3). 2 STATEMENT OF FACTS The charges against defendant stem from an incident that occurred on November l , 2008 at Wendy' s, a fast food restaurant located on East Avenue in the City of Rochester (48-49, 83). Kishmar Jones, a weekend crew leader, was the first employee to arrive that morning (49, 58). Another employee, Justin Travis, arrived thereafter and began restocking food (67-68). A short time later, Mr. Jones heard some unusual and continuous "hard" knocking coming from the back door of the restaurant (51, 59-62). Mr. Jones went into the office to check the schedule to determine which employees were expected to arrive that morning, and as he did, he looked at the security camera monitor showing the rear entrance (51-52, 60). The security monitor showed two men, defendant and his accomplice, standing outside and banging on the back door (52, 60, 77; see also stipulated video recording). Both men were wearing masks and carrying guns (52-53, 77). Mr. Jones alerted Mr. Travis to the situation, and Mr. Travis too heard multiple knocks as he emerged from the cooler in which he was working (60, 62, 72). Mr. Jones called his supervisor, Julie Woodward, who arrived shortly thereafter, and he called the police, who arrived within 30 minutes to 40 minutes (55, 63, 65, 73, 40-41). The restaurant employees did not have any, physical or verbal contact with the men (63- 64, 73, 81). There was no damage to the back door (65). 3 Rochester Police Officer Andrew Taylor ("Officer Taylor") responded to the scene and drove the rear of the restaurant, illuminating the area with his spotlight (83-84). He discovered the two men hiding behind some crates (84, 102). As Officer Taylor began to exit his vehicle, defendant ran directly toward him, while defendant's accomplice went in a different direction (84, 94, 100, 102). Defendant was carrying what appeared to be a black handgun, and he was wearing dark blue clothing, a black knit hat, black gloves and a black mask over his face (84-85). When Officer Taylor drew his weapon, defendant turned and ran across East Avenue, jumped over a fence, and crossed Interstate 490 (85, 102). Officer Taylor watched defendant jump over the fence on the opposite side of the highway (88, 111). The officer ran back to his car, crossed the highway, and located the spot where he had seen defendant jump over the fence (88-89). A K-9 officer also responded to that location, and the two officers tracked defendant's path, recovering a black knit hat and a black glove along the way (89-92, 97, 109, 111- 112, 114-116). They eventually ended up in the parking lot of an athletic club and discovered defendant hiding between two buildings at that location (93-95, 116- 118). Defendant was sweaty and wearing the same blue thermal underwear, black shorts, and blue vest that Officer Taylor had observed earlier (95). He also had a backpack containing a pair of green, black, and yellow gloves (95, 96, 104). 4 Defendant was not found with any tools, such as a hammer or a screwdriver (104). A black BB gun was recovered in the grass near Wendy' s, about ten feet from the dumpsters where defendant began his flight (44, 97-99, 103). A pellet gun was also found in defendant's vehicle, which was found in an adjacent parking lot about 50 feet away from Wendy's (44, 105, 122-126). After the People rested, defense counsel moved for a trial order of dismissal on the ground that there was insufficient evidence to prove that a crime, if any, was in the process of being committed (127, 132 [renewed motion]). Counsel further argued that the proof required speculation as to the crime being attempted, suggesting that defendant could have been attempting to commit anything from murder to arson to rape (127- 128). The prosecutor responded that the evidence, including the videotape of defendant banging on the back door in a ski mask and holding a gun, made it clear that if one of the employees had opened the door, a robbery would have ensued (128-129). The court denied the motion to dismiss the charges (130). By its verdict, the trial court convicted defendant of two counts of attempted robbery in the second degree, but acquitted him of attempted burglary in the second degree ( 139-140). Prior to sentencing, defendant filed a motion pursuant to CPL § 330.30, reiterating the issues raised in his motion for a trial order of dismissal (145). The court denied the motion (146). 5 ARGUMENT Defendant's attempted robbery conviction is based on legally sufficient evidence. Defendant's contention rests on his assertion that the People failed to establish his intent to forcibly steal property (App Br, 8). However, the trial evidence proved that there was no reasonable doubt that defendant intended to commit a robbery. The evidence is legally sufficient if "there is any valid line of reasoning and permissible inferences which could lead a rational person to the conclusion reached by the [judge] on the basis of the evidence at trial ... and as a matter of law satisfy the proof and burden requirements for every element of the crime charged" (People v Bleakley, 69 NY2d 490, 495 [1987] [internal citation omitted]; see also People v Mateo, 2 NY3d 383, 409 [2004]). The question is whether, viewing the totality of the evidence in a light most favorable toward the People, the trial court "'could have found the essential elements of the crime beyond a reasonable doubt'" (People v Contes, 60 NY2d 620,621 [1983], quoting Jackson v Virginia, 443 US 307, 319 [1979]; see also People v Reed, 22 NY3d 530, 534 [2014]). The question here is whether there was sufficient evidence that defendant intended to commit a robbery (see People v Bracey, 41 NY2d 296, 300 [1977] ["it must first be established that the defendant acted with a specific intent; that is, that he intended to commit a specific crime"]). In a criminal attempt case, intent can be "inferred from the defendant's conduct and the surrounding circumstances (id. at 6 301 ). The culpable mental state for robbery is the intent to permanently deprive the owner of [his or her] property (see People v Miller, 87 NY2d 211, 217 [1995]). The attempted "robber's conduct is rendered criminal by the . . . attempted forcible taking" (Miller, 87 NY2d at 217). "Whether guilt has been established beyond a reasonable doubt is a jury issue in most cases, where there is a conflict as to the facts, or the proof is open to opposing inferences" (People v Calabria, 3 NY3d 80, 82 [2004] [internal quotation marks omitted]). Although evidence of intent is often wholly circumstantial, "[t]he standard of appellate review in determining whether the evidence before the jury was legally sufficient to support a finding of guilty beyond a reasonable doubt is the same for circumstantial and non-circumstantial cases" (People v Grassi, 92 NY2d 695, 697 [1999]; see also People v Rodriguez, 17 NY3d 486,489 [2011] [direct evidence is "unnecessary where there is legally sufficient circumstantial evidence of intent"]). It is insignificant that defendant has offered myriad of inferences that could be drawn to counter the evidence inasmuch as "that is not the legal standard by which this Court is bound for reviewing a sufficiency of the evidence appeal" (Grassi, 92 NY2d at 699). A person is guilty of robbery in the second degree under Penal Law § 160.10 (I) he, aided by another person actually present, forcibly steals property (see Penal Law § 160.10 [I]). A person is guilty of robbery in the second degree under 7 section 160.10 (2) (b) when he forcibly steals property and, "[I]n the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime ... [d]isplays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm" (Penal Law§ 160.10 [2] [b]). Section 110.00 of the Penal Law provides that "[a] person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime" (Penal Law § 11 0.00). "In order to constitute an attempt, the defendant's conduct must have passed the stage of mere intent or mere preparation to commit a crime In other words, the defendant must have engaged in conduct that came dangerously near commission of the completed crime" (People v Naradzay, 11 NY3d 460, 466 [2008] [internal citations and quotation marks omitted]). It is well settled, however, that defendant is not required to engage "in the last proximate act necessary to accomplish the intended crime" (People v Mahboubian, 74 NY2d 174, 190 [1989]). "[T]he theoretical possibility that defendants might yet have renounced the criminal venture does not obviate their liability for an attempt, for that is true of any attempt interrupted by the police" (id.). 8 People v Bracey Although defendant attempts to distinguish Bracey from the case at bar (App Br, 13-17), the facts in Bracey are quite similar. The facts here elucidate defendant's intent to commit a robbery to an even greater extent. In Bracey (41 NY2d at 302), the Court reinstated defendants' convictions for attempted robbery, finding that defendants: ( 1) went to a commercial establishment anned with a gun concealed in a bag; (2) drove a car which could not be easily traced because of a missing license plate; (3) entered the store together, looked around and made a token purchase; ( 4) exchanged the bag outside and split up; (5) parked the car down the street from the store and (6) proceeded into the store with the gun drawn and only withdrew when the police arrived. Here, defendant: (l) went, with an accomplice, to a commercial establishment armed with what appeared to be firearms; (2) arrived early in morning, prior to the opening of business and after two employees had reported for work; (2) positioned himself at the rear door of the building, an entrance clearly unused by customers; (3) wore dark clothing and a black ski mask; (4) carried a backpack; (5) knocked loudly and repeatedly; (6) parked his car in a parking lot next door; (7) and hid before fleeing from police when he and his accomplice were discovered behind the restaurant (50-53, 59-62,77,84-85,95,97-99, 102-103; see People v Lamont, 113 AD3d 1069, 1071 [2014]). Contrary to defendant's claim 9 (App Br, 15), that he was armed, wearing dark clothing and a ski mask, and knocking loudly at the rear entry of minimally-occupied, closed commercial establishment at an early morning hour can certainly be seen as conduct common to robberies of commercial establishments. The fact that defendant never stepped inside the restaurant or brandished his gun at the employees is not dispositive of whether the evidence is legally sufficient to establish whether defendant committed attempted robbery (see Naradzay, 11 NY3d at 467). Although they were not observed reconnoitering the restaurant during business hours, the men arrived when it was still closed but occupied by employees, stationed themselves to the rear of the building, and parked defendant's vehicle in a nearby lot, all of which indicated that they were familiar with the building and the immediate surrounding area ( 105, 122-125). Importantly, the efforts of defendant and his accomplice to gain access to one or more of the employees that might have answered the door were stymied by Kishmar Jones and interrupted by police (51-52; 60-63; 83-85). As the Appellate Division held below, "[a]lthough it is possible, as defendant contends, that he intended to commit a crime other than robbery, e.g., murder, kidnapping, rape or assault, we conclude that there is 'not a reasonable possibility' that he intended to do so" (Lamont, 113 Ad3d at 1072, quoting Bracey, 41 NY2d at 303 ). There is no reasonably possibility that defendant and his lO accomplice intended to murder anyone inside the restaurant with their BB guns (see id.). To infer that defendant and his accomplice intended to commit a personal attack such as an assault, rape or kidnapping of one or more of the employees, '"the trier of fact would have to resort to sheer speculation"' in the absence of proof of any connection between defendant and any one of the employees, particularly in light of the perpetrators' inability to see who would be answering the door (id., quoting Bracey, 41 NY2d at 302). "The question then is whether the [trial court], considering the act and all the surrounding circumstances, could conclude that there was no reasonable doubt that these defendants acted with an intent to rob the" restaurant (Bracey, 41 NY2d at 30 1). Here, the Appellate Division correctly found that "[t]he only reasonable inference to be drawn is that defendant was attempting to gain entry to the restaurant so that he could rob someone" (Lamont, 113 Ad3d at 1072). This case is no different, in all significant ways, from Bracey, where it was also argued that defendants' conduct was "equally consistent with an intent to assault or menace" ( 41 NY2d at 302; see App Br, 18). This Court rejected that argument, concluding that: "[t]his of course is a possibility, but the jury was entitled to conclude that it was not a reasonable possibility under the circumstances" (id. at 302). In Bracey, the store clerk testified that "he did nothing which could provoke an assault, and he had never had any contact with either II defendant prior to the incident" ( 41 NY2d at 302; see also People v Castillo, 4 7 NY2d 270,278 [1979] [there was no proof that would-be burglar defendant had any prior relation with the building's occupants that might explain his pre-dawn presence on the third-floor ledge attempting to open a window]). Similarly here, the restaurant staff testified that they had no contact with defendant and that he was unknown to them (52-54, 58, 70, 80, 42). Moreoever, employee Kishmar Jones testified that defendant and his accomplice would not have been able to see into the restaurant from their position at the back door (57, 62). Thus, "in order to find that the defendant[] intended a personal assault or menace under these circumstances, [County Court] would have to resort to sheer speculation" (id.). Defendant's discussion of People v Wong (81 NY2d 600 [1993]) reveals no similarity to the instant matter (App Br, 20-21). In Wong, a shaken-baby death case, this Court overturned a manslaughter conviction in the absence of any evidence that the allegedly passive defendant was aware that any abuse had been inflicted by the co-defendant (81 NY2d at 61 0). People v Bailey ( 13 NY 3d 67, 71- 72 [2009]) is distinguishable where this Court found insufficient proof of intent to defraud in a criminal possession of a forged instrument in the first degree case. In Bailey, this Court found that defendant's larcenous conduct in a shopping district was completely unrelated to his possession of counterfeit bills ( 13 NY 3d at 71; People v Mateo, 13 AD3d 987 [3rd Dept 2004], lv denied 5 NY3d 883 [2005] 12 [evidence insufficient to establish intent to forcibly steal where defendant placed victim in headlock and stated: "Don't move. You know what this is."]; Matter of AmarA., 172 AD2d 426 [1st Dept 1991], lv denied 79 NY2d 751 [1991] [officer's testimony that defendant held a toy gun and attempted to pull at complaint's bag insufficient evidence of larcenous intent where complaint did not testify]). People v Webb (108 AD3d 1064 [4th Dept 2013], affd 23 NY3d 937 [2014]) is also uninstructive on the issue of larcenous intent. In Webb, the proof was insufficient to establish that defendant intended to "harass, annoy, threaten or alarm" his ex- girlfriend, his apparent use of abusive language notwithstanding, when he called her repeatedly to discuss his child support obligation (108 AD3d at 1064, 1066). The aforementioned cases concern the absence of proof of intent, or knowledge in Wong, or proof of an alternative intent, neither of which is the case here. "[A]n appellate court's duty, when reviewing the jury's finding, is not to determine whether it would have reached the same conclusion as the jury with respect to ... a proposed [alternative] explanation of the evidence" (Reed, 22 NY3d at 535). Although other crimes may be suggested with respect to that which defendant intended to commit, it was permissible for the trier of fact "to infer beyond a reasonable doubt from this evidence that defendant" and his accomplice intended to rob the restaurant (Reed, 22 NY3d at 535). Defendant and his accomplice were masked, armed, and knocking loudly on the rear entrance of the 13 restaurant at approximately 6:30A.M. (51). Although the restaurant was closed, and it could be reasonably inferred by their knocking that the men knew, or had cause to believe, that some of the restaurant staff had arrived for work. Defendant had a backpack, which, as the Appellate Division noted, would be useful to carry stolen property (see Lamont, 113 AD 3d at 1 072). It could also be reasonably inferred that the placement of defendant's vehicle in an adjacent construction parking lot was part of a deliberate plan of escape, which is common to robberies (see Bracey, 41 NY2d at 302). The circumstances, as a whole, give rise to the reasonable inference that, although not identical to the reconnoiter shown in Bracey, defendant and his accomplice had previously familiarized themselves with the restaurant, including the general area and the immediate surroundings, its business hours, and the arrival of first-shift employees. In essence, "[t]heir conduct obviously fit[] a familiar pattern common to robberies" (Bracey, 41 NY2d at 302). Thus, considering the totality of the facts and circumstances of this case in a light most favorable to the People, a rational trier of fact could conclude, beyond a reasonable doubt, that defendant intended to commit a robbery (see Bracey, 41 NY2d at 302). The trial court's verdict should therefore not be disturbed. 14 CONCLUSION The judgment of conviction should be affirmed. Erin Tubbs. of Counsel August , 20 14 15 Respectfully submitted, SANDRA DOORLEY Monroe County District Attorney Ebenezer Watts Building Suite 832 Rochester, NY 14614 STATE OF NEW YORK COURT OF APPEALS PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- PDF CERTIFICATION JAFARI LAMONT, Appellant. I, ERIN TUBBS, ESQ., certify that I am an attorney admitted to practice in the State of New York, and that I compared the PDF brief and it is identical to the filed original printed materials. DATED: August21,2014 ErinTUbbs, ESQ. STATE OF NEW YORK COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- JAFARI LAMONT, Appellant. STATE OF NEW YORK) COUNTY OF MONROE) SS: CITY OF ROCHESTER) AFFIDAVIT OF SERVICE BY MAIL Linda Gordon, being duly sworn, deposes and says that deponent is not a party to this action, is over the age of eighteen ( 18) years and resides at Rochester, New York. That on the 21st day of August, 2014, deponent served three (3) copies ofBrief for Respondent upon Janet C. Somes, attorney for appellant in this action at The Monroe County Public Defender's Office, 10 North Fitzhugh Street, Rochester, NY 14614, by depositing a true copy of the same, enclosed in a postpaid properly addressed wrapper, in an official depository under the exclusive care and custody of the United States Postal Service within the State ofNew York. Sworn to before me this 21st day of August 2014. c/fl;A (. J1W>- LINDA GORDON