Opinion
2012-12-6
The PEOPLE of the State of New York, Respondent, v. Hazel E. GORDON, Appellant.
Aaron A. Louridas, Delmar, for appellant. P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), for respondent.
Aaron A. Louridas, Delmar, for appellant. P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), for respondent.
Before: MERCURE, J.P., MALONE JR., KAVANAGH, STEIN and GARRY, JJ.
MALONE JR., J.
Appeal from a judgment of the Supreme Court (Lamont, J.), rendered April 23, 2010 in Albany County, upon a verdict convicting defendant of the crimes of robbery in the first degree, robbery in the second degree (two counts) and assault in the second degree.
Following a jury trial, defendant was convicted of robbery in the first degree, robbery in the second degree (two counts) and assault in the second degree based upon charges that, along with two accomplices, she stole jewelry from Boscov's department store in the Town of Colonie, Albany County, threatened a Boscov's loss prevention officer with two pens when he attempted to detain her outside the store, and injured another store employee with her car when he attempted to apprehend her in the parking lot. She was sentenced to an aggregate term of five years in prison and five years of postrelease supervision.
On this appeal, defendant first contends that her robbery convictions are not supported by legally sufficient evidence. We agree. Robbery in the first degree and robbery in the second degree, as charged in counts 1, 2 and 6 of the indictment, require the People to prove that a defendant “forcibly [stole] property” (Penal Law §§ 160.15[3]; 160.10[1], [2][a] ). As relevant here, forcible stealing is defined as using or threatening to use “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]; see People v. Kellam, 189 A.D.2d 1008, 1009, 592 N.Y.S.2d 864 [1993] ). “[F]orce merely used to escape will not support a robbery” ( People v. Bynum, 68 A.D.3d 1348, 1349, 890 N.Y.S.2d 217 [2009],lv. denied14 N.Y.3d 798, 899 N.Y.S.2d 132, 925 N.E.2d 936 [2010] ). Where a defendant is found to be in possession of stolen property, a jury may infer that he or she threatened or used force to prevent or overcome resistance to its taking or retention ( see id.; People v. Jones, 4 A.D.3d 622, 623–624, 771 N.Y.S.2d 613,lv. denied2 N.Y.3d 801, 781 N.Y.S.2d 300, 814 N.E.2d 472 [2004] ); however, when such evidence is lacking, “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 A.D.2d at 1010, 592 N.Y.S.2d 864;see People v. Miller, 217 A.D.2d 970, 970, 629 N.Y.S.2d 908 [1995];People v. Nixon, 156 A.D.2d 144, 146, 548 N.Y.S.2d 194,appeal dismissed76 N.Y.2d 870, 560 N.Y.S.2d 984, 561 N.E.2d 884 [1990] ).
Here, it is undisputed that no stolen property was found in the possession of defendant or either of her accomplices. Therefore, even viewing the evidence in the light most favorable to the People ( see People v. Bleakley, 69 N.Y.2d 490, 494, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987]; People v. Bynum, 68 A.D.3d at 1349, 890 N.Y.S.2d 217), we cannot conclude that the evidence is legally sufficient to support the robbery convictions ( see People v. Kellam, 189 A.D.2d at 1010, 592 N.Y.S.2d 864). However, because the evidence establishes that defendant, while still in the store, removed and discarded the cardboard backing from several pairs of earrings, we find it sufficient to support the lesser included offense of petit larceny ( seePenal Law § 155.25), and we exercise our discretion to reduce defendant's robbery convictions accordingly ( seeCPL 470.15[2][a]; 470.20[4] ).
Defendant's assault conviction is supported by legally sufficient evidence and is not against the weight of the evidence ( see People v. Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). The testimony of several witnesses indicates that, while driving away from the scene, defendant deliberately swerved her car toward the individual who was attempting to stop her, hitting him and causing injuries ( seePenal Law § 120.05[2]; People v. Stewart, 68 A.D.3d 1438, 1439, 892 N.Y.S.2d 570 [2009],lv. denied14 N.Y.3d 773, 898 N.Y.S.2d 105, 925 N.E.2d 110 [2010] ).
In addition to supporting her assault conviction, this evidence, in conjunction with the other evidence discussed above, fully justifies Supreme Court's cautionary instruction informing the jury that defendant's flight could be considered as evidence of consciousness of guilt ( see People v. Di Bella, 277 A.D.2d 699, 702, 715 N.Y.S.2d 777 [2000],lv. denied96 N.Y.2d 758, 725 N.Y.S.2d 284, 748 N.E.2d 1080 [2001];People v. Cunningham, 222 A.D.2d 727, 730, 635 N.Y.S.2d 304 [1995],lv. denied87 N.Y.2d 1018, 644 N.Y.S.2d 152, 666 N.E.2d 1066 [1996] ).
Defendant concedes that the victim sustained a physical injury and that the vehicle driven by defendant constitutes a dangerous instrument.
Defendant's argument that Supreme Court erred in permitting the jury to view unredacted security video was not preserved by a timely objection at trial. In any event, the court's limiting instruction mitigated any prejudice to defendant, and we do not agree with her claim that counsel's failure to object deprived her of meaningful representation ( see People v. Caban, 5 N.Y.3d 143, 152, 800 N.Y.S.2d 70, 833 N.E.2d 213 [2005];People v. Cecunjanin, 67 A.D.3d 1072, 1078, 889 N.Y.S.2d 691 [2009],mod. on other grounds16 N.Y.3d 488, 922 N.Y.S.2d 258, 947 N.E.2d 149 [2011];People v. Prue, 26 A.D.3d 671, 671–672, 811 N.Y.S.2d 455 [2006],lv. denied7 N.Y.3d 816, 822 N.Y.S.2d 491, 855 N.E.2d 807 [2006] ).
Finally, we find no error in Supreme Court's denial, without a hearing, of defendant's CPL 330.30 motion, which was based upon a postverdict hearsay letter addressed to the court by one of the jurors. The letter failed to allege that the jury's deliberative process was affected by an outside or improper influence, nor was the alleged impropriety sufficiently prejudicial as to require a new trial ( see People v. Irizarry, 83 N.Y.2d 557, 561, 611 N.Y.S.2d 807, 634 N.E.2d 179 [1993];People v. De Lucia, 15 N.Y.2d 294, 296, 258 N.Y.S.2d 377, 206 N.E.2d 324 [1965],cert. denied382 U.S. 821, 86 S.Ct. 50, 15 L.Ed.2d 67 [1965]; People v. Camacho, 293 A.D.2d 876, 876–877, 742 N.Y.S.2d 402 [2002],lv. denied98 N.Y.2d 729, 749 N.Y.S.2d 479, 779 N.E.2d 190 [2002] ).
ORDERED that the judgment is modified, on the law, by reducing defendant'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; matter remitted to the Supreme Court for resentencing; and, as so modified, affirmed.
MERCURE, J.P., KAVANAGH, STEIN and GARRY, JJ., concur.