| People v Magnuson |
| 2019 NY Slip Op 08450 [177 AD3d 1089] |
| November 21, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Jason B. Magnuson, Appellant. |
Corey Zennamo, Frankfort, for appellant.
William G. Gabor, District Attorney, Wampsville (J. Scott Porter of counsel), forrespondent.
Mulvey, J. Appeal from a judgment of the Supreme Court (Cerio Jr., J.), renderedFebruary 24, 2016 in Madison County, upon a verdict convicting defendant of the crimesof burglary in the third degree (three counts), petit larceny (three counts), conspiracy inthe fifth degree (two counts), resisting arrest, reckless endangerment in the seconddegree, unlawful fleeing a police officer in a motor vehicle in the third degree andreckless driving.
In October 2014, Walmart banned defendant and Steven Smith from all of itsproperties. On November 1, 2014, Smith entered a Walmart store in the City of Oneida,Madison County at 9:11 a.m. and walked around the store moving merchandise intodifferent carts. At 11:06 a.m., he eventually paid for a mop bucket and gaming chair,apparently switched carts and left the store with over $3,000 worth of stolen electronicmerchandise and other items hidden inside boxes corresponding to the items he had justpurchased. Smith brought the merchandise to a vehicle being driven by defendant. At11:14 a.m., Smith reentered the store and—without paying for anything at thistime—exited a few minutes later with a cart containing a mop bucket and gamingchair. He again brought the merchandise to the vehicle driven by defendant. At 11:39a.m., defendant entered the store with a mop bucket and gaming chair, along with areceipt for those items, and returned them at the customer service desk, receiving arefund of the purchase price after an employee verified that the items were indeed in theboxes being returned. For this activity, in addition to other shoplifting from the samestore and attendant interactions with law enforcement, defendant was charged in a17-count indictment alleging various crimes committed both directly and as anaccomplice.
Following a trial, the jury convicted defendant of burglary in the third degree (threecounts), petit larceny (three counts), conspiracy in the fifth degree (two counts), resistingarrest, reckless endangerment in the second degree, unlawful fleeing a police officer in amotor vehicle in the third degree and reckless driving. Supreme Court sentenceddefendant, as a second felony offender, to prison terms of 2
Defendant argues that the evidence is legally insufficient to support the burglarycounts. In reviewing the legal sufficiency of the evidence for defendant's preservedclaims, this Court must determine whether, when viewing the evidence in the light mostfavorable to the People, "there is any valid line of reasoning and permissible inferenceswhich could lead a rational person to the conclusion reached by the jury on the basis ofthe evidence at trial and as a matter of law satisfy the proof and burden requirements forevery element of the crime[s] charged" (People v Bleakley, 69 NY2d 490, 495[1987] [citation omitted]; accordPeople v West, 166 AD3d 1080, 1083-1084 [2018], lv denied 32 NY3d1129 [2018]; People vGethers, 151 AD3d 1398, 1398-1399 [2017], lv denied 30 NY3d 980[2017]). "A person is guilty of burglary in the third degree when he [or she] knowinglyenters or remains unlawfully in a building with intent to commit a crime therein" (PenalLaw § 140.20). "A person 'enters or remains unlawfully' in or uponpremises when he [or she] is not licensed or privileged to do so" (Penal Law§ 140.00 [5]). Additionally, "[a] person is guilty of petit larceny when he[or she] steals property" (Penal Law § 155.25). "A person steals propertyand commits larceny when, with intent to deprive another of property or to appropriatethe same to himself[, herself] or to a third person, he [or she] wrongfully takes, obtains orwithholds such property from an owner thereof" (Penal Law § 155.05[1]).
The only relevant arguments that defendant raised in his trial motion todismiss—and, thus, the only preserved arguments—are that the evidencefailed to prove that he and Smith were banned from all Walmart stores or that he knewthat he and Smith were so banned, such that defendant could not have had the requisitemental state of knowing that he or Smith unlawfully entered the store. The evidencerefutes this argument. A former asset protection associate at a Walmart store inWaterbury, Connecticut testified that, in October 2014, both Smith and defendant werepresent at the same time in a 12-foot by 16-foot office when defendant was issued a letterindicating that he was banned from all Walmart stores. The associate explained the letterto defendant verbally, as defendant could not sign it due to being handcuffed. Theassociate testified that defendant was present when Smith was issued the same ban letter.Copies of each letter were admitted into evidence. This evidence was legally sufficient toestablish that defendant knew that he and Smith were banned from all Walmart stores,rendering their entry unlawful. Thus, as to the only preserved arguments, the evidencewas legally sufficient to support the convictions (see People v Edmonds, 165 AD3d 1494, 1495-1496[2018]; People v Morrison,127 AD3d 1341, 1343 [2015], lv denied 26 NY3d 932 [2015]).
Defendant also contends that the verdicts convicting him of burglary in the thirddegree and certain related crimes are against the weight of the evidence. "A weight of theevidence review requires [this Court] first to decide whether, based on all the credibleevidence, a different finding would not have been unreasonable, and then, like the trierof fact below, weigh the relative probative force of conflicting testimony and the relativestrength of conflicting inferences that may be drawn from the testimony. Whenconducting a review of the weight of the evidence, we view the evidence in a neutrallight and defer to the jury's credibility assessments" (People v Nunes, 168 AD3d 1187, 1188 [2019] [internalquotation marks and citations omitted], lv denied 33 NY3d 979 [2019]; see People v Werkheiser, 171AD3d 1297, 1298 [2019], lv denied 33 NY3d 1109 [2019]). It is undisputedthat Smith and defendant entered a building. Based on the evidence noted above, the jurycould reasonably have concluded that defendant knew that they were both banned fromWalmart property, making their entries unlawful. The element of burglary in the thirddegree at issue is whether they had the intent to commit a crime in the building whenthey entered (see Penal Law § 140.20).
The testimony of Walmart employees and the surveillance video demonstrate thatSmith spent nearly two hours in the store moving merchandise between carts and stagingcarts with similar items. An employee testified that they later located a mop bucket andgaming chair in different parts of the store; from the context of the answers, it canreasonably be inferred that those items were not in their boxes when they werediscovered.[FN1]Itappears that after Smith made his purchases but before he exited the store the first time,he switched the cart holding the purchased merchandise with a cart that looked similarbecause it held boxes for the mop bucket and the gaming chair, which boxes did notcontain those items but instead contained the stolen electronics and other items. Statedanother way, Smith left the cart of purchased items in the store and exited with stolenitems secreted in boxes correlating to the items he had just purchased. Defendant's intent,assistance and knowledge of Smith's actions were established by defendant moving thevehicle to different spots in the parking lot, helping load the items into the car, and hisactions on another date when Smith attempted a similar scheme and defendant fled fromthe police (as reflected in counts 11-17). Thus, the verdict regarding the 9:11 a.m.burglary was not against the weight of the evidence.
A different finding would not have been unreasonable as to the 11:14 a.m. and 11:39a.m. burglaries. If Smith simply switched the carts after making his purchase and exitedthe first time with only the stolen items hidden in boxes made for the same products thathe purchased, then the cart he exited with the second time would have contained only theitems that he purchased. Under those circumstances, in which, at 11:14 a.m., Smithremoved from the store only items that he had purchased, no burglary occurred at thattime. On the video, store security alarms lit up when Smith exited the first time, but notwhen he exited the second time or when defendant entered with items to return. There isa slim possibility that, before his first exit, Smith did not simply switch one cart foranother but instead moved some of the stolen items so that he took a mixture of some ofthe stolen merchandise and some of the purchased items on each of his first and secondexits; in that situation, each of Smith's two trips into the store could constitute a burglary.Although that scenario is possible, the brief period of time during which Smith wasunable to be seen by the surveillance cameras makes it unlikely that he could have moveditems between the cart of purchased items and the staged cart. As it is unclear which ofthese scenarios happened, and either is possible, the People did not prove beyond areasonable doubt that a second burglary occurred at 11:14 a.m. Accordingly, the verdictson counts 3 and 5 (the 11:14 a.m. burglary and related petit larceny) are against theweight of the evidence. Because the overt act alleged to support count 4 (conspiracy inthe fifth degree related to the 11:14 a.m. burglary) was the theft of the mop bucket andgaming chair at that time, which we have concluded was not adequately proven, theconviction on that count is also against the weight of the evidence.
We reach the same result regarding counts 1 and 2 (the 11:39 a.m. burglary andrelated petit larceny). A store employee testified that Smith legitimately purchased certainitems, albeit as part of his burglary scheme.[FN2]Defendant then used the receipt fromthose legitimate purchases and returned those items. Before giving defendant a refund, anemployee opened the boxes to verify that the proper items were inside. Although thePeople assert that defendant returned stolen items for a refund, their argument failsregardless of how we interpret the evidence. First, it appears that Smith did not actuallytake two mop buckets and gaming chairs from the store; rather, he bought (during hisfirst entrance) and exited the store with (during his second entrance at 11:14 a.m.) one ofeach of those items, and also emptied the boxes for one of each and used thoseboxes—without the mop bucket or gaming chair—to take other smallermerchandise out of the store. Under that scenario, where Smith purchased only one ofeach item, defendant must have returned the items that Smith purchased.
Alternatively, if, in addition to his purchases, Smith somehow stole a mop bucketand gaming chair in their boxes—which is unlikely because one of each of thoseitems was located in the store outside of any box—with other unpurchased itemshidden in the boxes around them, he would have had two of each item. Under thosecircumstances, defendant may have returned either the mop bucket and gaming chair thatSmith purchased or the identical items that had been stolen. An employee testified that aperson would not be able to tell the difference between an identical item that had beenstolen and one that had been purchased. Presumably, the store does not care which of twoidentical items are returned to it, as long as the refund is made for the exact make andmodel of an item that had been purchased from that store. For example, if a personbought one item on Tuesday and an identical item on Wednesday, it seems that the storewould not know or care if the person went back to the store for a refund withWednesday's item but brought Tuesday's receipt for the identical item.
Under either of those scenarios, the evidence demonstrates that when defendantentered the store at 11:39 a.m., he intended to return items that Smith hadpurchased—again, albeit as part of a burglary scheme—for a refund of thepurchase price (compare State v Jennings, 2011 WL 2226458, *1, 4; 2011 NCApp LEXIS 1348, *3-4, 11 [June 7, 2011, No. COA10—1250]). As returningpurchased items is not a crime, the People failed to prove that defendant intended tocommit a crime when he unlawfully entered the store, or that he stole money from thestore by accepting a refund when returning items that actually had been purchased(see Penal Law §§ 140.20, 155.05 [1]). Accordingly, theconvictions on counts 1 and 2 are against the weight of the evidence, requiring dismissalof those counts.
Defendant is not entitled to relief based on Supreme Court's declination to chargeany lesser included offenses for the burglary counts. "A defendant is entitled to a lesserincluded offense charge upon request when (1) it is impossible to commit the greatercrime without concomitantly committing the lesser offense by the same conduct and (2)there is a reasonable view of the evidence to support a finding that the defendantcommitted the lesser offense but not the greater" (People v Morrison, 127 AD3dat 1344 [internal quotation marks, brackets and citations omitted]). As we have dismissedcounts 1 and 3, we need not address whether defendant was entitled to charges for anylesser included offenses related to those counts. Regarding count 7, even viewing theevidence in the light most favorable to defendant (see id.), he was not entitled toa charge for any lesser included offense. Criminal trespass in the third degree was notapplicable here because the record does not disclose that the building or property was"fenced or otherwise enclosed in a manner designed to exclude intruders" (Penal Law§ 140.10 [a]; seePeople v Moore, 5 NY3d 725, 726-727 [2005]), or that any of the otherenumerated aggravating factors existed (see Penal Law § 140.10[b]-[g]). Although it is impossible to commit burglary in the third degree withoutconcomitantly committing the violation of trespass (see Penal Law§ 140.05; People vBarringer, 54 AD3d 442, 444 [2008], lv denied 11 NY3d 830 [2008]),no reasonable view of the evidence would support a finding that Smith entered the storeunlawfully at 9:11 a.m. but without an intent to commit a crime therein, or that defendantwas unaware of or failed to share Smith's intent (see People v Morrison, 127AD3d at 1344-1345; People vAlsaifullah, 96 AD3d 1103, 1104 [2012], lv denied 19 NY3d 994[2012]; compare People v Grant, 132 AD2d 929, 930 [1987], lv denied70 NY2d 750 [1987]). Accordingly, the court did not err in declining to provide the jurywith a charge for a lesser included offense in relation to count 7 (see People vBlim, 63 NY2d 718, 720-721 [1984]).
Because we are dismissing certain counts, defendant's argument concerning thesentences imposed is academic.
Garry, P.J., Clark, Aarons and Pritzker, JJ., concur. Ordered that the judgment ismodified, on the facts, by reversing defendant's convictions of burglary in the thirddegree, petit larcency and conspiracy in the fifth degree under counts 1, 2, 3, 4 and 5 ofthe indictment; said counts dismissed and the sentences imposed thereon vacated; and, asso modified, affirmed.
Footnote 1:The employee testifiedthat the gaming chair was left in the garden center, where Smith had been stagingmerchandise in an area out of view of the surveillance cameras, and the mop bucket wasleft on a shelf. The video shows Smith concealing an unboxed mop bucket by placingother items in front of and on top of it.
Footnote 2:It appears that Smithmade the valid purchases so that he could have a receipt when leaving the store with thestolen items hidden in the emptied boxes correlating to the purchased items, and so thathe could go back into the store and again have the receipt when exiting with the items hehad purchased.