The People, Respondent,v.Jafari Lamont, Appellant.BriefN.Y.Mar 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. _______________________ __________________________________________________________________ REPLY 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: September 4, 2014 _________________________________________________________________ TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES i REPLY: Respondent’s Argument Relies On Speculation To Fill The Gap Left By The Evidence On The Issue of Intent. 1 i TABLE OF AUTHORITIES Jackson v Virginia, 443 US 307 (1979) ................................................................. 1 People v Bracey, 41 NY2d 296 (1977) .............................................................. 1, 2 People v Lamont, 113 AD3d 1069 (4th Dept 2014) ............................................... 1 People v Robinson, 282 AD2d 75 (1st Dept 2001) ................................................ 2 1 REPLY Respondent’s Argument Relies On Speculation To Fill The Gap Left By The Evidence On The Issue of Intent. Appellant does not disagree with the People’s conclusion that sheer speculation is required to find that Mr. Lamont intended to commit a “personal attack” upon someone inside, or some crime other than robbery. However, that same resort to sheer speculation is required to find his intent was to rob. The trial evidence in this case gives rise to suspicion that perhaps Mr. Lamont intended to steal when he and a companion, seemingly armed, knocked on the back door of a closed Wendy’s restaurant. But as the dissenting justices below pointed out: “even if we concede (and we do not) that it is more probable than not that defendant and his companion were attempting to commit robbery, that is insufficient to sustain a criminal conviction (see generally Jackson v Virginia, 443 US 307, 315-316 ).” (People v Lamont, 113 AD3d 1069, 1075 [4th Dept 2014] [internal citation modified].) The evidence in this case gives rise to many possibilities as to intent, but fails to establish beyond a reasonable doubt, any one, including a larcenous one. The People contend that the evidence in this case elucidates “defendant’s intent to commit a robbery,” even more than did the evidence in People v Bracey (41 NY2d 296 ). Their argument, however, fails to recognize the critical role the “reconnoiter” conduct engaged in by the defendants in Bracey played to 2 fill the critical gap otherwise left by the trial evidence on the issue of intent – a gap that in the present case remains unfilled. The People’s argument here impermissibly relies upon speculation to fill in the gap. The People concede there was no evidence of “reconnoiter” activity in this case. And indeed, the People point to no evidence of preparatory conduct engaged in by Mr. Lamont or his companion that reflects a planned or intended robbery. Unlike Bracey, where the defendants’ “conduct obviously fit a familiar pattern common to robberies” (Bracey, 41 NY2d at 302), there was no evidence of conduct unique and common to robberies here. As this Court pointed out in Bracey, the fact that the defendant entered the “stationery store with a gun in his hand does not unequivocally establish that he intended to commit a robbery.” (Bracey, 41 NY2d at 301). Neither does the fact that someone, seemingly armed and wearing a mask, knocked on the back door of a closed restaurant unequivocally establish that he intended to commit a robbery. And indeed, the activity of the defendants in Bracey is so commonly associated with robberies, that there is well-recognized slang terminology for it. “Casing a joint” involves exploration and gathering of information about an establishment in order to steal (http://idioms.thefreedictionary.com/case+the+joint [“to look over some place to figure out how to break in, what to steal”]; see People v Robinson, 282 AD2d 75, 77-78 [1st Dept 2001] [the officer testified that “he 3 believed the defendant was casing the stores in anticipation of robbing them”]). It was the extensive preparatory conduct of the defendants prior to the time one actually walked into the store with a gun drawn that enabled the jury to conclude, beyond a reasonable doubt, that a robbery was intended. And it is that conduct which is missing in this case. With no evidence to show that Mr. Lamont and his companion had engaged in activity commonly undertaken by those planning a robbery, the People argue that the defendant’s conduct of being at the rear of the Wendy’s building at a time when it was closed, parking his vehicle in a nearby lot, and carrying a backpack (in which one might cart off the stolen loot), is an adequate substitute for the type of proof presented in Bracey. However, such conduct, even when considered collectively with other evidence in the case, remains equivocal. Parking a car in an adjacent parking lot, which the People contend is a “deliberate plan of escape” (Respondent’s Brief at 14), is no more common and unique to robbery than it is to any other crime. Nor is carrying a backpack common to robbery – it could just as likely be used to carry non-stolen items such as masks and BB guns. There is simply no evidence of conduct in the present case that is of such a unique and common character or pattern that it provides a basis to conclude, beyond a reasonable doubt, that Mr. Lamont had a specific intent to rob.