| People v Gordon |
| 2012 NY Slip Op 08353 [101 AD3d 1158] |
| December 6, 2012 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Hazel E.Gordon, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
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 firstdegree, 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 thesecond degree (two counts) and assault in the second degree based upon charges that, along withtwo 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 attemptedto detain her outside the store, and injured another store employee with her car when heattempted to apprehend her in the parking lot. She was sentenced to an aggregate term of fiveyears in prison and five years of postrelease supervision.
On this appeal, defendant first contends that her robbery convictions are not supported bylegally sufficient evidence. We agree. Robbery in the first degree and robbery in the seconddegree, as charged in counts 1, 2 and 6 of the indictment, require the People to prove that adefendant "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 uponanother person for the purpose of . . . [p]reventing or overcoming resistance to thetaking of the property [*2]or to the retention thereof immediatelyafter the taking" (Penal Law § 160.00 [1]; see People v Kellam, 189 AD2d 1008,1009 [1993]). "[F]orce merely used to escape will not support a robbery" (People v Bynum, 68 AD3d 1348,1349 [2009], lv denied 14 NY3d 798 [2010]). Where a defendant is found to be inpossession of stolen property, a jury may infer that he or she threatened or used force to preventor overcome resistance to its taking or retention (see id.; People v Jones, 4 AD3d 622,623-624 [2004], lv denied 2 NY3d 801 [2004]); however, when such evidence is lacking,"it is impossible to conclude beyond a reasonable doubt that defendant's conscious objective inthreatening to use physical force was to prevent or overcome resistance to the retention of theproperty" (People v Kellam, 189 AD2d at 1010; see People v Miller, 217 AD2d970, 970 [1995]; People v Nixon, 156 AD2d 144, 146 [1989], appeal dismissed76 NY2d 870 [1990]).
Here, it is undisputed that no stolen property was found in the possession of defendant oreither of her accomplices. Therefore, even viewing the evidence in the light most favorable to thePeople (see People v Bleakley, 69 NY2d 490, 494 [1987]; People v Bynum, 68AD3d at 1349), we cannot conclude that the evidence is legally sufficient to support the robberyconvictions (see People v Kellam, 189 AD2d at 1010). However, because the evidenceestablishes that defendant, while still in the store, removed and discarded the cardboard backingfrom several pairs of earrings, we find it sufficient to support the lesser included offense of petitlarceny (see Penal Law § 155.25), and we exercise our discretion to reducedefendant's robbery convictions accordingly (see CPL 470.15 [2] [a]; 470.20 [4]).
Defendant's assault conviction is supported by legally sufficient evidence and is not againstthe weight of the evidence (see People v Bleakley, 69 NY2d at 495). The testimony ofseveral witnesses indicates that, while driving away from the scene, defendant deliberatelyswerved her car toward the individual who was attempting to stop her, hitting him and causinginjuries (see Penal Law § 120.05 [2]; People v Stewart, 68 AD3d 1438, 1439 [2009], lv denied14 NY3d 773 [2010]).[FN*]In addition to supporting her assault conviction, this evidence, in conjunction with the otherevidence discussed above, fully justifies Supreme Court's cautionary instruction informing thejury that defendant's flight could be considered as evidence of consciousness of guilt (seePeople v Di Bella, 277 AD2d 699, 702 [2000], lv denied 96 NY2d 758 [2001];People v Cunningham, 222 AD2d 727, 730 [1995], lv denied 87 NY2d 1018[1996]).
Defendant's argument that Supreme Court erred in permitting the jury to view unredactedsecurity video was not preserved by a timely objection at trial. In any event, the court's limitinginstruction mitigated any prejudice to defendant, and we do not agree with her claim thatcounsel's failure to object deprived her of meaningful representation (see People v Caban, 5 NY3d 143,152 [2005]; People v Cecunjanin,67 AD3d 1072, 1078 [2009], mod on other grounds 16 NY3d 488 [2011]; People v Prue, 26 AD3d 671,671-672 [2006], lv denied 7 NY3d 816 [2006]).
Finally, we find no error in Supreme Court's denial, without a hearing, of defendant's CPL330.30 motion, which was based upon a postverdict hearsay letter addressed to the court by [*3]one of the jurors. The letter failed to allege that the jury'sdeliberative process was affected by an outside or improper influence, nor was the allegedimpropriety sufficiently prejudicial as to require a new trial (see People v Irizarry, 83NY2d 557, 561 [1994]; People v De Lucia, 15 NY2d 294, 296 [1965], certdenied 382 US 821 [1965]; People v Camacho, 293 AD2d 876, 876-877 [2002],lv denied 98 NY2d 729 [2002]).
Mercure, J.P., Kavanagh, Stein and Garry, JJ., concur. Ordered that the judgment ismodified, on the law, by reducing defendant's convictions for robbery in the first degree androbbery in the second degree under counts 1, 2 and 6 of the indictment to petit larceny; matterremitted to the Supreme Court for resentencing; and, as so modified, affirmed.
Footnote *: Defendant concedes that thevictim sustained a physical injury and that the vehicle driven by defendant constitutes adangerous instrument.