The People, Respondent,v.Jafari Lamont, Appellant.BriefN.Y.March 26, 2015 To Be Argued By: Janet C. Somes Time Requested: 10 Minutes APL-2014-00072 __________________________________________________________________ Court of Appeals State of New York _______________________ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -vs- JAFARI LAMONT, Appellant. _______________________ __________________________________________________________________ BRIEF FOR APPELLANT __________________________________________________________________ TIMOTHY P. DONAHER Monroe County Public Defender Attorney for Appellant BY: JANET C. SOMES Assistant Public Defender 10 N. Fitzhugh Street Rochester, New York 14614 Tel: (585) 753-4329 Fax: (585) 753-4234 Date Completed: June 24, 2014 _________________________________________________________________ TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES i, ii, iii, iv QUESTION PRESENTED 1 PRELIMINARY STATEMENT 2 STATEMENT OF FACTS 4 ARGUMENT The People Failed To Present Legally Sufficient Evidence To Establish That Mr. Lamont Possessed A Larcenous Intent. 7 A. Introduction 7 B. Attempted Robbery Requires Proof Beyond A Reasonable Doubt Of Intent To Forcibly Steal Property. 8 C. Standard Of Review 10 D. The Equivocal Nature Of The Trial Evidence Makes It Impossible To Conclude, Absent Speculation, That Mr. Lamont Intended To Steal. 13 CONCLUSION 28 i TABLE OF AUTHORITIES Federal Case Jackson v Virginia, 443 US 307 [1979] ............................................................................................. 10 State Cases Matter of Amar A., 172 AD2d 426 [1st Dept 1991] ..................................................................... 16, 24 People v Bailey, 13 NY3d 67 [2009] ............................................................................................. 22 People v Barboni, 21 NY3d 393 [2013] ........................................................................................... 11 People v Bracey, 41 NY2d 296 [1977] .................................................................................... passim People v Calabria, 3 NY3d 80 [2004] ............................................................................................... 10 People v Castillo, 47 NY2d 270 [1979] ..................................................................................... 25, 26 People v Contes, 60 NY2d 620 [1983] ........................................................................................... 10 People v Cooper, 248 AD2d 213 [1st Dept 1998] ........................................................................... 12 People v Danielson, 9 NY3d 342 [2007] ............................................................................................. 13 People v Dupree, 91 AD2d 1071 [2d Dept 1983] ....................................................................... 8, 18 People v Durden, 219 AD2d 605 [2d Dept 1995] ........................................................................... 24 ii People v Hall, 18 NY3d 122 [2011] ........................................................................................... 20 People v Harris, 191 AD2d 643 [2d Dept 1993] ........................................................................... 17 People v Kennedy, 47 NY2d 196 [1979] ................................................................................. 8, 12, 13 People v Lamont, 113 AD3d 1069 [4th Dept 2014] .................................................................... 3, 16 People v Ledwon, 153 NY 10 [1897] ............................................................................................... 10 People v Lewie, 17 NY3d 348 [2011] ........................................................................................... 10 People v Mackey, 49 NY2d 274 [1980] ........................................................................................... 25 People v Mateao, 13 AD3d 987 [3d Dept 2004] ................................................................... 9, 16, 26 People v Miller, 87 NY2d 211 [1995] ....................................................................................... 9, 10 People v Pena, 50 NY2d 400 [1980] ..................................................................................... 10, 17 People v Perry, 19 NY3d 70 [2012] ....................................................................................... 12, 17 People v Reed, 22 NY3d 530 [2014] ........................................................................................... 19 People v Rivera, 184 AD2d 288 [1st Dept 1992] ........................................................................... 17 iii People v Rodriguez, 17 NY3d 486 [2011] ............................................................................... 11, 23, 24 People v Slaughter, 83 AD2d 857 [2d Dept 1981] ............................................................................. 17 People v Smith, 79 NY2d 309 [1992] ............................................................................................. 9 People v Steinburg, 79 NY2d 673 [1992] ........................................................................................... 27 People v Tavares, 235 AD2d 325 [1st Dept 1997] ........................................................................... 17 People v Vicioso, 116 AD3d 1250 [3d Dept 2014] ......................................................................... 24 People v Webb, 23 NY3d 937 [2014] ..................................................................................... 20, 21 People v Wilson, 10 AD3d 460 [2d Dept 2004] ............................................................................. 11 People v Wong, 81 NY2d 600 [1993] ............................................................................... 12, 20, 21 State Statutes Criminal Procedure Law § 70.20 ............................................................................. 7 Criminal Procedure Law § 330.30 ....................................................................... 2, 6 Penal Law § 15.05 .................................................................................................... 9 Penal Law § 110.00 .......................................................................................... 2, 8, 9 Penal Law § 155.05 .................................................................................................. 9 iv Penal Law § 160.00 .................................................................................................. 9 Penal Law § 160.10 ........................................................................................... 2,8, 9 Penal Law § 160.15 .................................................................................................. 9 Penal Law § 170.30 ................................................................................................ 22 1 QUESTION PRESENTED Whether the evidence was legally sufficient to support Jafari Lamont’s convictions for attempted second degree robbery where there was 1) no proof of a completed crime, 2) no evidence of any statements made by Mr. Lamont or his companion at the time they were outside the restaurant which reflected an intent to steal, 3) no evidence of an admission to police which revealed an intent to steal, and 4) no evidence of conduct which fit a pattern common and unique to robbery. Answer Below: The majority of the Appellate Division justices determined that the evidence was legally sufficient to conclude beyond a reasonable doubt that Mr. Lamont intended to commit a robbery, while the dissenting justices concluded it was not. 2 PRELIMINARY STATEMENT On January 6, 2009, Mr. Lamont was charged by way of a Monroe County indictment with two counts of attempted robbery in the second degree (Penal Law §§ 110.00, 160.10[1] and §§ 110, 160.10[2][b]) and one count of attempted burglary in the second degree (Penal Law §§ 110.00, 140.25 [1][d]). The charges stemmed from Mr. Lamont’s conduct in the early morning hours of November 1, 2008, outside the rear door of a closed Wendy’s restaurant in Rochester, New York. Mr. Lamont waived his right to a jury trial, and on July 16, 2012, a bench trial was held before the Honorable Patricia D. Marks in Monroe County Court. Following the presentation of the People’s case, Mr. Lamont moved for a trial order of dismissal based upon the prosecution’s failure to present legally sufficient evidence to establish Mr. Lamont’s intent to steal. Judge Marks found Mr. Lamont guilty of the two counts of attempted robbery in the second degree, and not guilty of attempted burglary. After denying Mr. Lamont’s motion pursuant to Criminal Procedure Law § 330.30 to set aside the verdict, on August 3, 2009, Judge Marks sentenced Mr. Lamont to concurrent determinate terms of seven years imprisonment, to be followed by five years post-release supervision. He remains incarcerated. 3 On January 3, 2014, the Appellate Division, Fourth Department, in a split (3-2) decision, affirmed the conviction. The majority found the evidence of intent to steal legally sufficient on the basis of evidence which showed: the Wendy’s employees who testified did not know Mr. Lamont; the restaurant was closed; the defendant and his companion were armed with BB guns that appeared to be firearms, wore masks and gloves, and had a backpack. The majority of the court concluded there was “‘not a reasonable possibility’ that [defendant] intended to commit a crime other than robbery” (People v Lamont, 113 AD3d 1069 [4th Dept 2014). The dissenting justices found the evidence insufficient to prove beyond a reasonable doubt that the defendant specifically intended to “forcibly steal property from an employee of the Wendy’s restaurant.” And, they concluded, even if it was more probable than not that the defendant and his companion were attempting to commit a robbery (which they did not concede), “that is insufficient to sustain a criminal conviction.” (Id. at 1075.) Associate Appellate Division Justice Erin M. Peradotto granted Mr. Lamont leave to appeal to this Court on March 27, 2014. 4 STATEMENT OF FACTS With the night of fright, as Halloween is known, giving way to morning on November 1, 2008, Kishmar Jones, weekend crew leader, was working to prepare for the morning opening of the Wendy’s restaurant on East Avenue, Rochester, when he heard knocking at the back door of the building. He did not open the door, but instead went into the office where he could see images captured by the security cameras located outside. One of the sixteen security cameras in place was pointed toward the back door, and from that camera, he could see two men banging on the door. Both men were wearing masks and each had what appeared to be a gun. (Appendix 49-53 [hereinafter A].) Mr. Jones called his manager, who was on her way to work, to warn her about the men. He then called police. When the manager arrived, she entered through the front door, and together they watched what was happening outside by means of the security camera. A recording from the security camera was admitted into evidence at the trial (People’s Exhibit 2). The Wendy’s employees watched and waited for police to arrive and never came face-to-face with the men outside. No verbal communication took place between the people inside and the two outside. (A 63-64, 81.) Rochester police officer Andrew Taylor was dispatched to the restaurant. He drove around to the back, and illuminated the area with his patrol car spotlight. 5 Officer Taylor saw two men trying to hide behind some stacked up crates, and when the officer got out of his car, the men fled. Taylor chased one of the men across East Avenue, but when the suspect climbed over a six foot fence and ran across all lanes of Interstate 490, the officer got into his car and drove to the place he last saw the suspect. A K-9 unit responded and began to track, eventually finding Jafari Lamont in a four-foot wide alleyway between two buildings. (A 83- 95.) Defense counsel stipulated that Mr. Lamont was one of the individuals who had been in back of the Wendy’s restaurant (A 44). Defense counsel also stipulated to the admission of two BB guns and a knit hat found at or near the scene (A 44). Officer Jeremy Nash also responded to the Wendy’s restaurant that morning. He testified that his attention was directed to a nearby location and that a “99 blue Dodge Durango” was parked next to the M & T bank that was under construction. He later determined the Durango was registered to Jafari Lamont. A pellet gun pistol was laying on the passenger floorboard of the Durango. ( A 122-125.) Following the People’s proof, defense counsel moved for a trial order of dismissal, arguing there was an absence of proof from which to conclude the specific crime of robbery was intended or attempted. To illustrate his position, counsel pointed out that the circumstances of the proof could have established one of any number of crimes was intended – and that there was nothing to indicate it 6 was the specific crime of robbery, as opposed to another crime, that was attempted. The motion was denied. (A 127-130.) In summation counsel continued with that argument, and told the court that in the absence of proof, speculation was required to reach the conclusion that it was a robbery, as opposed to some other crime, that was intended and attempted. The court found Mr. Lamont guilty of two counts of attempted robbery in the second degree, and not guilty of attempted burglary in the second degree. On August 3, 2009, Mr. Lamont requested, pursuant to Criminal Procedure Law § 330.30, that the verdict be set aside on the ground that the proof of intent to steal property was legally insufficient (A 145-146, 160-164 [motion]). The prosecutor noted that the motion was based upon the same argument that the court had already twice rejected, and that Mr. Lamont’s remedy was an appeal of the conviction. The court denied the motion and sentenced Mr. Lamont to concurrent seven year terms of imprisonment, to be followed by five years of post-release supervision. 7 ARGUMENT The People Failed To Present Legally Sufficient Evidence To Establish That Mr. Lamont Possessed A Larcenous Intent. A. Introduction Before the sun had risen after Halloween night, two individuals, both wearing black masks and carrying BB guns, knocked on the back door of a Wendy’s restaurant. Inside, two employees were readying the restaurant for opening. They heard knocking at the back door, saw the two outside via a surveillance camera, and called the police. When the police arrived and illuminated the back door area with a spotlight, the two ran off. (A 49-55, 84.) In this case there was no evidence of any words spoken or gestures made by either of the two individuals when they were at the back door. There was no admission by Mr. Lamont to police, and his companion was never arrested. There was no proof of a completed crime. And there was no proof of actions taken before the two were at Wendy’s that fit a pattern common and unique to any specific crime. A guilty verdict may not stand unless it is “based upon trial evidence which is legally sufficient and which establishes beyond a reasonable doubt every element of such offense and the defendant’s commission thereof.” (CPL 70.20.) Here, Mr. Lamont has been convicted of two counts of attempted robbery in the second degree, each of which require proof, beyond a reasonable doubt, of an 8 intent to forcibly steal property (see Penal Law §§ 110, 160.10; People v Miller, 87 NY2d 211, 214 [1995]). But the record in this case lacks sufficient evidence from which an intent to steal can properly be inferred, and it is only by impermissible resort to speculation that the fact-finder in this case could conclude Jafari Lamont intended to forcibly steal property. This is a case where the fact-finder simply “assumed too much on the basis of too little evidence” (People v Kennedy, 47 NY2d 196, 204 [1979]; see People v Dupree, 91 AD2d 1071, 1072 [2d Dept 1983]). B. Attempted Robbery Requires Proof Beyond A Reasonable Doubt Of Intent To Forcibly Steal Property. “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 § 110.00.) An attempt to commit a specific crime is required – not just that defendant intended to commit a criminal act. (People v Bracey, 41 NY2d 296, 299 [1977].) Mr. Lamont has been convicted of attempted robbery in the second degree, under both subdivisions (1) and (2)(b) of Penal Law § 160.10. A person is guilty of robbery in the second degree under subdivision (1) when he "forcibly steals property” and is “aided by another person actually present” (Penal Law § 160.10 [1]). A person is guilty of robbery in the second degree under subdivision (2)(b) when he “forcibly steals property” and “in the 9 course of the commission of the crime or immediate flight therefrom, he or another participant in the crime . . . displays what appears to be a pistol, revolver, rifle, shotgun machine gun or other firearm” (Penal Law § 160.10 [2] [b]). A person "forcibly steals" when he "uses or threatens the immediate use of physical force upon another person for the purpose of . . . compelling the owner of such property or another person to deliver up the property” (Penal Law § 160.00 [2]). “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].) As relevant here, “the applicable culpability standard – intent – require[s] evidence that, in using or threatening physical force, [the] defendant's 'conscious objective' was . . . to compel [the] victim to deliver up property” (People v Smith, 79 NY2d 309, 315 [1992], quoting Penal Law § 15.05 [1]; § 160.00 [1], [2]). Thus, the prosecution was required to prove, beyond a reasonable doubt, that Mr. Lamont intended to forcibly steal property (Penal Law §§ 110.00, 160.10 [1]; §160.10 [2] [b]), as the “intent to forcibly steal” is an “indispensable element of the crime of attempted robbery” (People v Mateao, 13 AD3d 987 [3d Dept 2004], citing Penal Law § 160.15; People v Miller, 87 NY2d 211, 214). 10 C. Standard Of Review The question of law for this Court in determining whether the evidence was legally sufficient to support a guilty verdict is 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” (People v Lewie, 17 NY3d 348, 364 [2011], citing Jackson v Virginia, 443 US 307, 319 [1979]; see also People v Contes, 60 NY2d 620, 621 [1983]). “That means that the foundation for the finding of guilt may not be based on conjecture or suspicion but on facts and inferences which common human experience would lead a reasonable man, putting his mind to it, to . . . accept.” (People v Pena, 50 NY2d 400, 407 [1980] [internal quotation marks and citations omitted].) And where the evidence at trial gives rise to competing inferences, but resort to speculation is the pathway to finding guilt beyond a reasonable doubt, the conviction cannot be sustained (People v Calabria, 3 NY3d 80, 82 [2004], citing People v Ledwon, 153 NY 10, 17 [1897] [evidence legally insufficient where “there was simply no way – based on the evidence, as opposed to on rampant speculation – that the jury could rationally determine beyond a reasonable doubt that one of the contradictory accounts [provided by the sole eyewitness] was true and the other, false”]). At issue here is the sufficiency of the evidence of larcenous intent. Intent, of course, is an “invisible operation of [the] mind [and] direct evidence is rarely 11 available (in the absence of an admission) and is unnecessary where there is legally sufficient circumstantial evidence of intent (see People v Bracey, 41 NY2d 296, 301 [1977] [noting ‘intent can also be inferred from the defendant's conduct and the surrounding circumstances’]).” (People v Rodriguez, 17 NY3d 486, 489 [2011] [some internal quotations and citations omitted].) This Court recognized the “unusual problem” posed by “attempt” cases where inferential proof of a specific intent is more difficult to establish than in cases where a crime has been completed, and a result realized. “A jury is entitled to infer that a defendant intended the natural and probable consequences of his acts” (see People v Barboni, 21 NY3d 393, 405 [2013]). But, in an “attempt” case, there is no “result” from which to infer intent and eliminate what may be a raft of other possibilities. The question of intent for an “attempt” is even more elusive where the evidence does not include any sort of revealing admission, and the act which is claimed to have advanced the commission of the crime is equivocal and provides no basis for an inference of an intent to commit a specific crime. The actions of Mr. Lamont and his companion were equivocal, with no “result” or “consequence” from which to infer intent. Nor was there an open expression of intent to rob either at the time Mr. Lamont and his companion were at the back door of the Wendy’s restaurant (compare People v Wilson, 10 AD3d 460 [2d Dept 2004] [sufficient basis to 12 conclude defendant possessed requisite intent to forcibly steal where defendant held a shotgun to the complainant and told him to empty his pockets]; People v Cooper, 248 AD2d 213, 214 [1st Dept 1998]), or later when speaking to police (compare People v Perry, 19 NY3d 70, 73 [2012] [defendant’s admission that he displayed gun to frighten another established that he intentionally committed the crime of menacing].) Although the standard of review for legal sufficiency of circumstantial evidence cases is generally the same as direct evidence cases (see People v Wong, 81 NY2d 600 [1993]), the inference drawn by the fact-finder must be carefully examined to ensure that the “conclusion of guilt [is] consistent with and flow[s] naturally from proven facts.” (People v Kennedy, 47 NY2d 196, 202 [emphasis added].) This Court has recognized that there is “a danger legitimately associated with circumstantial evidence – that the trier of facts may leap logical gaps in the proof offered and draw unwarranted conclusions based on probabilities of low degree” (id. [internal citation omitted]). “Hence, close judicial supervision is necessary to ensure that the jury does not make inferences which are based not on the evidence presented, but rather on unsupported assumptions drawn from evidence equivocal at best” and because of the “comparative ease with which logical flaws can creep into the reasoning process in such cases.” (Id. [internal citations omitted].) Simply put, “[c]areful scrutiny of such cases is required 13 because of the danger that the fact finder will simply assume too much on the basis of too little evidence.” (Id. at 204.) Even when the facts in this case are marshalled most favorably to the People, and the People are given the benefit of every reasonable inference, there is no basis for the fact-finder to logically conclude that the prosecution had sustained its burden of proof (People v Danielson, 9 NY3d 342, 349 [2007]) on the element of intent. For it is only by resort to impermissible speculation, that it can be concluded that Mr. Lamont intended to steal. D. The Equivocal Nature Of The Trial Evidence Makes It Impossible To Conclude, Absent Speculation, That Mr. Lamont Intended To Steal. In People v Bracey this Court was clear: the overt act of walking into a store with a gun in hand “does not unequivocally establish that [defendant] intended to commit a robbery. He might have intended . . . to assault or menace the owner, or he might have had an innocent purpose in mind. The act does not speak for itself, as it rarely will in the case of criminal attempt.” (Bracey, 41 NY2d 296, 301.) But in Bracey, there was evidence besides the equivocal act of one defendant walking into the stationary store with a gun in hand, which supplied the fact-finder with a basis to conclude, beyond a reasonable doubt, that the defendants intended to commit a robbery. Based upon that additional evidence, the answer to the question of “whether the jury, considering the act and all the surrounding 14 circumstances, could conclude that there was no reasonable doubt that these defendants acted with an intent to rob the store,” (id.), was yes. It was evidence of the defendants’ conduct prior to the time one defendant entered the store with a gun in hand, that permitted a rational person to conclude the duo in Bracey intended to commit robbery. That critical evidence showed the defendants had engaged in a series of actions commonly undertaken by those planning to rob – they had “cased the joint.” Specifically, the defendants had come to the store in a car with the license plate removed so it could not be easily traced. They went in the store, looked around, and made an insignificant purchase. Back outside, they spilt up, with one driving the car around the block and then parking it down the street from the store, while the other positioned himself outside the store before entering it with a gun in hand. Under these particular circumstances, the “conduct obviously fit[ ] a pattern common to robberies” and “the jury could well find that the defendants, who acted together throughout, had reconnoitered the store and returned to rob it. In fact, the only thing that could have made their [intention to rob] plainer was an actual demand for money.” (Id. at 302.) The evidence in Bracey, unlike the evidence in the present case, included multiple and deliberate acts on the part of the defendants which could only have been undertaken in an effort to advance a plan to rob the store. And it was those steps of planning and preparation leading up to the unexecuted final act, which 15 provided a basis for the jury to infer that defendants intended to rob. The combination of the equivocal conduct (going into the store armed with a gun), and the pattern of conduct commonly undertaken in preparation (casing the store and readying for the escape), allowed for the inference of guilt beyond a reasonable doubt. Because there was evidence of conduct uniquely associated with a robbery in Bracey, what was otherwise equivocal evidence became unequivocal, and permitted the jury to infer an intent to rob, beyond a reasonable doubt. Such evidence is missing in this case, and the conduct of Mr. Lamont and his companion is equivocal at best. It is unclear from the evidence in this case, what the two may have been up to with their wearing masks, holding guns, and knocking on a back door of a restaurant a few hours after midnight on Halloween. And there are no surrounding circumstances in the present case, or additional conduct on the part of the defendants, which serve to provide an evidentiary pathway for the fact-finder to reasonably conclude, beyond a reasonable doubt, that Mr. Lamont intended to rob. The evidence in the present case is limited to equivocal conduct, which Bracey suggests is insufficient when unaccompanied by other evidence from which intent to rob could be inferred. The overt act – knocking on the back door of a closed restaurant while holding a gun and wearing a mask – does not speak for itself, just like the overt act of going into a store with a gun in hand, does not speak for itself to unequivocally establish an intent to rob (see id.). When there is only 16 equivocal conduct of a man entering store with a gun, or a masked man knocking on the back door of a closed restaurant with a gun in hand, he might have intended any number of things, and the conduct is therefore equivocal. As the dissenting justices at the Appellate Division pointed out in this case, “[t]here is no evidence of preparation or prior coordination on the part of defendant and his companion, no statements by defendant or his companion that evidence an intent to steal property, and no actions by either individual that specifically reflect a larcenous intent as opposed to general criminal intent (see Mateo, 13 AD3d at 988; Matter of Amar A., 172 AD2d 426 [1st Dept 1991]).” (People v Lamont, 113 AD3d 1069, 1074 [Fahey, J.P., Peradotto, J., dissenting] [internal citation form modified]). Here, the witnesses described, and the surveillance recording showed, two individuals hanging around and knocking on the back door of a closed Wendy’s restaurant, while holding guns and wearing masks (A 54, 77). Mr. Jones, an employee inside the closed restaurant at the time, heard three sets of knocks at the back door (A 61-62). The time period from the last knock until the police arrived was about thirty to forty minutes (A 63). Jones never heard the individuals outside say anything (A 63). When the police arrived, Mr. Lamont and his companion fled, and Mr. Lamont was apprehended a short time later (A 85, 94). He had a backpack which contained a mask and gloves (A 96). 17 There was no evidence of surrounding circumstances or additional conduct, from which an intent to commit any specific crime could be properly found beyond a reasonable doubt. There was no evidence of words spoken or gestures made, from which an intent to rob can reasonably be inferred (compare People v Tavares, 235 AD2d 325 [1st Dept 1997][sufficient basis to conclude defendant possessed requisite intent to forcibly steal where defendant threatened to kill the complainant unless money turned over and repeatedly attempted to open the store's cash register]; People v Harris, 191 AD2d 643 [2d Dept 1993] [sufficient basis to conclude defendant possessed requisite intent to forcibly steal where knife- wielding defendant demanded complainant’s keys and rummaged through his pockets]). There was no evidence of steps taken in preparation which are common to a planned robbery (compare People v Bracey, 41 NY2d 296). There was no evidence of anything said to police by Mr. Lamont which revealed an intent to rob (compare People v Perry, 19 NY3d 70, 73). And even if the display of the guns indicated an intent to use force to do something, “the use of force alone is not evidence of an intent to steal” because to be guilty of robbery (or attempted robbery), “the use of force must be shown to have been for the purpose of executing the robbery.” (People v Rivera, 184 AD2d 288 [1st Dept 1992]). Nor does flight evince an intent to commit a specific criminal act (see People v Slaughter, 83 AD2d 857 [2d Dept 1981], affd 56 NY2d 18 993 [1982] [evidence of flight is equivocal]). A person wielding a gun, intending to menace, assault, rape or kill, would be just as likely to run away upon approach by police, as one intent upon committing a robbery. Thus, flight fails to establish a specific intent to rob. Nor did the evidence in this case discount or negate an intent to commit some other crime. While the witnesses employed by Wendy’s said they did not know an individual by the name of “Jafari Lamont” (A 58), that alone does not eliminate the possibility of a rift or conflict between either of the individuals outside and someone thought to be inside. The identity of Mr. Lamont’s companion was never established, and the fact that the witnesses did not recognize the name “Jafari Lamont” does not establish that the duo did not intend to do something other than rob. This is a case where no circumstances “discounted any of the numerous inferences with respect to the intentions of the appellant at the time of the attempted entry and a jury would have to resort to sheer speculation to find that the appellant intended to commit [a forcible stealing].” (People v Dupree, 91 AD2d 1071, 1072.) In Bracey (41 NY2d 296) the pattern of activity common to robbery preparation served to discount any speculation that the defendants intended to menace or assault. In the present case, there is no evidence that serves to discount any of the numerous alternative inferences. 19 But critically, this is not a choice between competing inferences, amongst which the jury is free to choose (see People v Pena, 50 NY2d 400). Without evidence in addition to that presented at the trial in this case, there is no choice to make. The act of two masked and seemingly armed individuals knocking on the back door of a closed restaurant is too tenuous to conclude, beyond a reasonable doubt, that a robbery, murder, assault, rape or Halloween prank was intended. (See People v Reed, 22 NY3d 530, 537 [2014], [Lippman, CJ dissenting “[w]e are not concerned with positing innocent explanations for the evidence. Rather, we are concerned with whether the jury’s conclusion . . . was sufficiently supported by the evidence”]). That the two were up to “no good” may be a fair inference, but speculation is necessary to fill in the gaps which must be filled in order to conclude defendant intended to commit any specific crime. In Bracey, this Court pointed out that speculation was required to find the defendants there intended to assault or menace the shopkeeper (41 NY2d 296, 302). That is because the equivocal act of walking into the store with a gun in hand, alone, did not establish an intent to menace or assault. But while there was no evidence of additional conduct or surrounding circumstances from which an intent to menace or assault could be inferred in Bracey, intent to rob could be inferred from the additional evidence of the defendants’ “reconnoiter” of the store. In the present case, there was no evidence of additional conduct, or surrounding 20 circumstances, from which an intent to rob could be inferred. For the same reasons this Court said speculation was required for an inference of intent to menace or assault in Bracey, speculation is required for an inference of an intent to rob in this case. This Court has repeatedly refused to allow speculation to play a part in a jury’s verdict (see e.g. People v Webb, 23 NY3d 937 [2014]; People v Hall, 18 NY3d 122 [2011] [“speculation is not a permissible ground for a guilty verdict”]; People v Wong, 81 NY2d 600). In People v Wong (81 NY2d 600), a husband and wife were convicted of manslaughter for the death of an infant left in their care. The evidence showed the baby had died as a result of shaken-baby syndrome. There was no evidence showing which of the two had engaged in the shaking of the child, or where in the small apartment the other was when the shaking occurred. To support the People’s theory that the non-shaking defendant was criminally liable for failing to seek medical attention after the child was shaken, it was necessary to prove that the “passive” defendant was aware that the shaking had occurred, and realized the risk of death created by the shaking. Even though both defendants had told police that they had been awake and tending the child during the time period when the child was most likely shaken (and no proof showed either to have left the room in which the baby was located during the relevant time period), and offered false explanations for the child’s condition, this 21 Court found the evidence insufficient because presence in the small apartment was “simply too tenuous a thread to support the weight of the all-important inference of knowledge on the part of the ‘passive’ defendant.” (Id. at 609.) Thus, any conclusion by the jurors that the “passive” defendant actually knew of the abuse “would have to have been based on impermissible speculation,” as there was no basis to infer he or she had observed the shaking. (Id. at 610.) Recently, in People v Webb (23 NY3d 937), this Court agreed with the Appellate Division, Fourth Department, in finding that the evidence underlying a conviction for criminal contempt in the first degree was legally insufficient where the question of intent was at issue. There, proof beyond a reasonable doubt of an intent to harass, annoy, threaten or alarm was required. The dissent at the Appellate Division had found competing inferences could be drawn concerning defendant’s intent, and that it was not unreasonable for the jury to conclude the defendant possessed the required intent based upon evidence that included: defendant’s repeated telephone calls to his ex-girlfriend (the mother of his child in whose favor an order of protection had been issued), three of which occurred during one hour period; the defendant’s use of the words “bitch” and “whore” to refer to the ex-girlfriend as he spoke with her; defendant’s declaration that he would not pay child support (and indeed he never had); and his threat to embarrass her at an upcoming court proceeding. The defendant had contended that the 22 purpose of his calls was to discuss child support, and that he did not intend to harass, annoy, threaten or alarm the complainant. The Appellate Division majority found the only inference to be drawn from the evidence was that the calls were made with the intent to discuss issues of child support and visitation, and not to harass, alarm, annoy or threaten. Intent was also at issue in People v Bailey (13 NY3d 67 [2009]), where this Court found the evidence supporting the conviction legally insufficient, and reversed the defendant’s conviction for criminal possession of a forged instrument in the first degree. There, police, on the lookout for pickpockets, observed the defendant as he entered and exited several fast food restaurants but never ordered any food or even looked at a menu. The defendant did, however, surreptitiously move his hand toward some purses, capturing the attention of police, who arrested him. When searched, the defendant had counterfeit $10 bills in his pocket, and he acknowledged such. This Court found insufficient proof of intent to defraud, deceive or injure another – the mental state required for criminal possession of a forged instrument (Penal Law § 170.30). The courts below had found to the contrary, by asking essentially: why else would defendant possess the bills in a shopping area other than to pass them off to unsuspecting merchants? Permitting the inference to be drawn on the basis of knowing possession alone improperly shifted the burden of proof from the People to the defendant, stripping the crime of 23 the intent element. (People v Bailey, 13 NY3d 67, 72.) Thus, asking what other purpose the defendant’s actions might serve, and finding none in evidence, cannot substitute for proof beyond a reasonable doubt that the defendant did intend a specific result. This Court said that the “evidence provided by the People only gives rise to suspicion or conjecture that defendant intended to pass or utter the counterfeit bills.” (Id. at n 2.) A contrary conclusion was reached in People v Rodriguez (17 NY3d 486, 489-90), where defendant was found in possession of forged documents in one pocket (license, green card, social security card), along with his true identification in another, and the evidence supporting an intent to defraud, deceive or injure another was found legally sufficient. The distinction between the Rodriguez case and the Bailey case lies in the additional circumstances present in Rodriguez, which form a sufficient basis for the inference that defendant acted with the requisite intent. In Rodriguez, the defendant knew the police were looking for him, thereby providing a motive to “assume a false identity” (id.). And there was evidence from which the jury could have inferred that the defendant had a hand in manufacturing the false documents, done so recently, and retained the requisite intent to defraud at the time of his arrest. Also supporting the jury’s conclusion that defendant possessed the requisite intent was proof that defendant carried the forged documents in a separate pocket from his true identification which would allow him 24 to “quickly and easily produce one or the other, as needed,” and proof that he had written a letter to the court asking to plead guilty, from which the jury could infer he had the requisite intent “and was admitting as much by requesting to plead guilty.” (Id. at 490.) As the cases above illustrate, the surrounding circumstances are critical to a determination of whether the evidence was sufficient for a rational fact-finder to conclude, beyond a reasonable doubt, that the defendant had a specific criminal intent. But in this case no surrounding circumstances combine with Mr. Lamont’s equivocal act to permit a rational jury to conclude, beyond a reasonable doubt, that Mr. Lamont intended to steal. The conduct of the defendants – banging on the back door of a closed restaurant while wearing masks and holding what appeared to be guns – is “simply too tenuous a thread to support the weight of the all- important inference” of intent to steal (see Matter of Amar A., 172 AD2d 426 [insufficient evidence of larcenous intent where a police officer observed the juvenile, who appeared to have pistol in hand, attempt to pull at a bag carried by an individual]; compare People v Vicioso, 116 AD3d 1250 [3d Dept 2014] [sufficient evidence of intent to steal where shortly before the robbery of the taxicab driver the defendant engaged in conversation with his accomplice about robbing a cab driver, and after the robbery, the two said they had “done something” and had hidden the gun]; People v Durden, 219 AD2d 605 [2d Dept 1995] [defendant’s 25 intent to forcibly steal a jeep could be inferred from his conduct along with the surrounding circumstances, which included the accomplice approaching the complainant with a gun drawn as defendant entered the complainant’s jeep, and the accomplice trying to start the jeep as the defendant sat in it]). In People v Castillo (47 NY2d 270 [1979]), the defendant was seen on the outside window ledge of an apartment, trying to pull open the bathroom window. Convicted of attempted burglary, one of the questions before this Court was whether the jury could reasonably conclude there was “no reasonable doubt that the defendant . . . intended to burglarize the apartment” (id. at 277). Stressing that the foundation “for the findings must be facts and inferences that are so reasonable that they cannot be confused with mere conjecture or suspicion,” this Court found the evidence of defendant’s intent to commit a crime inside the apartment sufficient to meet that test based upon the proof of the uncomplicated act alone (id.). Critically, in Castillo, unlike this case, the requisite intent for attempted burglary only needed to be a general intent to commit a crime – any crime – inside (see People v Mackey, 49 NY2d 274, 278 [1980]). Thus, “the presence of the perpetrator, like a cliff climber, on the third-story ledge of a city apartment complex in the dead of night could hardly lead to any other inference but that a crime was in the offing” where the perpetrator, who had no prior relationship with the occupants (who would be expected to be asleep), tried to pull open a bathroom 26 window (a room in which no one would be expected to be present). The evidence “permitted a conclusion that the intruder’s means of access fit a familiar pattern common to burglaries.” (Id. at 278.) Evidence of a general intent to commit a crime, as opposed to evidence of a specific intent to forcibly steal, is the difference between the result reached in Castillo, and the contrary one compelled here. In this case, there was no evidence from which to conclude, beyond a reasonable doubt, that Mr. Lamont and his companion intended to steal property. Nor was there evidence presented from which to conclude, beyond a reasonable doubt, that Mr. Lamont and his companion’s actions were undertaken for the specific purpose of assaulting, raping, killing or pranking someone. Nor was there evidence from which to conclude, beyond a reasonable doubt, that the two were trying to escape pursuit, or avoid danger imposed by others. While there may have been untold possibilities – most are all just that – possibilities, with insufficient evidence from which to conclude, beyond a reasonable doubt, any specific intent, including an intent to steal (see People v Mateo, 13 AD3d 987 [evidence of intent to steal was insufficient where complainant placed in headlock and told: “Don’t move. You know what this is”]). Mr. Lamont’s conduct in this case does speak for itself in one respect. Masked men carrying what appear to be guns, knocking on a door before sunrise is alone, without more, conduct that will reasonably cause fear – a consequence from 27 which intent can be inferred given the surrounding circumstances here (see People v Steinburg, 79 NY2d 673, 685 [1992]). But, the question left unanswered by the evidence in this case is whether that conduct was undertaken to advance some objective other than to frighten. And if it was, what was that objective? No speculation is needed to conclude that the actions of Mr. Lamont and company would frighten, and that the two intended such. Speculation is needed to determine what end that conduct was intended to served. In this case, impermissible speculation has filled the gap left by the evidence. The conduct of Mr. Lamont and his companion was equivocal at best; it does not speak for itself beyond what is described above, and no other evidence of conduct or circumstances speak for it. The evidence in this case simply fails to support the conclusion, beyond a reasonable doubt, that Mr. Lamont possessed an intent to steal. Any inference that he did fails to naturally and logically flow from the evidence presented at trial because impermissible speculation is required to fill in the gaps necessary to arrive at a conclusion that he intended to commit a robbery. This case simply does not have sufficient facts from which a rational trier of fact could conclude, beyond a reasonable doubt, that Mr. Lamont intended to steal.