| People v Archie |
| 2010 NY Slip Op 01807 [71 AD3d 686] |
| March 2, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Derrick Archie, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Amy Appelbaum,and Marisa D. Shemi of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Gerges, J.),rendered December 14, 2006, convicting him of robbery in the first degree and burglary in thesecond degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the conviction of robbery inthe first degree and vacating the sentence imposed thereon; as so modified, the judgment isaffirmed, and the matter is remitted to the Supreme Court, Kings County, for a new trial on thatcount.
The defendant contends that the evidence was legally insufficient to establish his guilt ofrobbery in the first degree, as the People failed to prove beyond a reasonable doubt that heintended to permanently withhold the property taken from the complainant. Likewise, hecontends that the evidence was legally insufficient to establish his guilt of burglary in the seconddegree, as the People failed to prove beyond a reasonable doubt that he remained unlawfully inthe complainant's home prior to the alleged commission of the robbery. Neither issue ispreserved for appellate review (see CPL 470.05 [2]; People v Gray, 86 NY2d 10,19 [1995]). In any event, viewing the evidence in the light most favorable to the prosecution(see People v Contes, 60 NY2d 620 [1983]), we find that it was legally sufficient toestablish the defendant's guilt beyond a reasonable doubt of both crimes. We further find thatbased on the weight of the credible evidence, the jury was justified in finding the defendantguilty of robbery in the first degree (seePeople v Danielson, 9 NY3d 342, 348 [2007]; People v Romero, 7 NY3d 633, 643-644 [2006]). As to the crimeof burglary in the second degree, the evidence established that the defendant remained in thesubject apartment unlawfully with the intent to commit a crime therein (see People v Pequero, 60 AD3d542, 543 [2009]; People vWoods, 6 AD3d 634, 635 [2004]). Accordingly, the conviction of burglary in thesecond degree is supported by the weight of the evidence (see Penal Law § 140.00[5]; § 140.25 [2]; People v Mahboubian, 74 NY2d 174, 193 [1989]; People vGaines, 74 NY2d 358, 363 [1989]; People v Mackey, 49 NY2d 274, 279 [1980]).
However, the Supreme Court committed reversible error in its instruction to the juryregarding when the offense of larceny, an element of robbery, is complete. Contrary to thePeople's contention, "although defense counsel's exception to the charge could have beenexpressed with greater precision" (People v Albanese, 88 AD2d 603 [1982]), theobjection was sufficient to preserve the issue for appellate review.
The court instructed the jury that "[t]he offense of larceny is complete when there has been[*2]a taking or severance of the goods from possession, and evenmomentary possession of another's property is sufficient." In fact, the offense of larceny is notcomplete, even where there has been "a taking or severance of the goods from possession,"unless there has been, at the same time, "an intent to permanently deprive" the owner of his orher property (People v Zambuto, 93 AD2d 873 [1983]; see People v Albanese,88 AD2d 603 [1982]). As given, the instruction "could have misled the jury into thinking thatany withholding, permanent or temporary, constituted larceny" (People vBlacknall, 63 NY2d 912, 914 [1984] [internal quotation marks omitted]; see People vJohnson, 75 AD2d 585 [1980]). Increasing the likelihood of jury error regarding this issue,the court failed to define "intent," or to inform the jury at any point of "the distinction betweenan intent to permanently deprive and an intent to temporarily deprive" (People vZambuto, 93 AD2d at 873; see People v Albanese, 88 AD2d 603 [1982]). The errorcannot be deemed harmless, as the evidence that the defendant intended to permanently deprivethe complainant Rowland of his property is less than overwhelming and, "[h]ad the jury beeninstructed more thoroughly on the meaning of intent, it is possible that the jury [might] havereturned a different verdict finding that defendant . . . did not intend to permanentlydeprive" (People v Albanese, 88 AD2d at 603). Accordingly, the conviction of robberyin the first degree and the sentence imposed thereon must be vacated, and the matter remitted tothe Supreme Court, Kings County, for retrial solely on that count.
The remainder of the defendant's contentions, raised in his pro se supplemental brief, arewithout merit. Covello, J.P., Angiolillo, Lott and Roman, JJ., concur.