| People v Lamont |
| 2014 NY Slip Op 00005 [113 AD3d 1069] |
| January 3, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Jafari Lamont, Appellant. |
—[*1] Jafari Lamont, defendant-appellant pro se. Sandra Doorley, District Attorney, Rochester (Erin Tubbs of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Patricia D. Marks, J.),rendered August 3, 2009. The judgment convicted defendant, upon a nonjury verdict, ofattempted robbery in the second degree (two counts).
It is hereby ordered that the judgment so appealed from is affirmed.
Memorandum: On appeal from a judgment convicting him following a nonjury trialof two counts of attempted robbery in the second degree (Penal Law §§110.00, 160.10 [1], [2] [b]), defendant contends that the evidence is legally insufficientto establish that he intended to steal property forcibly from another person, and that theverdict in that regard is against the weight of the evidence. We reject those contentions.The relevant facts are not in dispute. At approximately 6:30 a.m. on November 1, 2008,an employee of a Wendy's restaurant in Rochester was preparing food for the day whenhe heard the sound of knocking at the back door, which is not used by the general public.The restaurant was closed at the time. When the employee looked at the security camera,he observed two men outside "banging" on the back door. Both men wore masks andappeared to be brandishing handguns. The employee called 911, and a police officer wasdispatched to the scene.
When the officer arrived at the back of the restaurant in a marked patrol vehicle, heobserved two men hiding behind a stack of crates. As the officer began to exit hisvehicle, the men emerged from behind the crates. One of the men, later identified asdefendant, ran directly toward the officer with his gun pointed at the officer, while theother man ran in the opposite direction. Defendant was wearing a black mask over hisface, a black knit hat and black gloves. The officer pursued defendant and, with theassistance of the K-9 unit, found him hiding between two nearby buildings. Defendanthad a backpack that contained clothing but no gun. The police later found a black BBgun in the grass behind the restaurant near the location where the men were hiding. Thepolice also found a vehicle registered to defendant in a parking lot next to the restaurant,and they found a pellet gun inside the vehicle. Defendant's companion was neverapprehended.[*2]
The indictment charged defendant with twocounts of attempted robbery in the second degree and two counts of attempted burglaryin the second degree. Both counts of attempted robbery alleged, inter alia, that defendant"attempted to forcibly steal property from an employee of the Wendy's restaurant." Attrial, the parties stipulated to the introduction in evidence of the footage from the storesecurity camera, which showed two masked men knocking at the back door and holdingpistols. The parties further stipulated that defendant was the masked man who ran towardthe responding officer and was later apprehended. The three employees of Wendy's whowere working that morning testified that they did not know defendant. County Courtconvicted defendant of both attempted robbery counts and acquitted him of the attemptedburglary counts.
Although defendant concedes that he and his companion "may have been up to nogood with their masks and BB guns when they knocked on the door," he contends thatthe People failed to prove beyond a reasonable doubt that they intended to commit arobbery as opposed to some other crime, such as murder, kidnapping, rape or assault, andthus that the evidence is legally insufficient to support the conviction. We reject thatcontention. "Because intent is an invisible operation of the mind . . . , directevidence is rarely available (in the absence of an admission) and is unnecessary wherethere is legally sufficient circumstantial evidence of intent," which may be inferred fromdefendant's conduct and the surrounding circumstances (People v Rodriguez, 17 NY3d486, 489 [2011] [internal quotation marks omitted]). Here, it may reasonably beinferred from defendant's conduct and the surrounding circumstances that he intended tosteal property forcibly from an employee of Wendy's.
Although defendant's mere entry into a store with a gun does not "unequivocallyestablish that he intended to commit a robbery" (People v Bracey, 41 NY2d 296,301 [1977], rearg denied 41 NY2d 1010 [1977]), the evidence also establishedthat none of the Wendy's employees knew defendant; the restaurant was not open to thepublic when defendant sought entry; defendant and his accomplice were armed with BBguns that appeared to be firearms; defendant and his accomplice wore masks and gloves;and defendant had a backpack into which stolen property could be put. Viewing theevidence in the light most favorable to the People, as we must (see People vContes, 60 NY2d 620, 621 [1983]), we conclude that there is a " 'valid line ofreasoning and permissible inferences [that] could lead a rational person' " to theconclusion reached by the trial court, i.e., that defendant was trying to gain entry into therestaurant with the intent to steal property forcibly from someone inside (People vHines, 97 NY2d 56, 62 [2001], rearg denied 97 NY2d 678 [2001]).Furthermore, viewing the evidence in light of the elements of the crime in this nonjurytrial (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not againstthe weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495[1987]).
Although it is possible, as defendant contends, that he intended to commit a crimeother than robbery, e.g., murder, kidnapping, rape or assault, we conclude that there is"not a reasonable possibility" that he intended to do so (Bracey, 41 NY2d at 303).Because the only weapons possessed by defendant and his accomplice were BB guns, itis not reasonable to infer that they intended to murder anyone inside the restaurant.Similarly, in the absence of evidence that defendant or his accomplice knew any of theWendy's employees, it is not reasonable to infer that they intended to assault one or moreof the employees. Indeed, "[i]n order to find that the defendant[ ] intended a personalassault . . . under these circumstances, the [trier of fact] would have toresort to sheer speculation" (id. at 302). Nor is it reasonable to infer thatdefendant intended to rape or kidnap someone in the restaurant. The only reasonableinference to be drawn is that defendant was attempting to gain entry to the restaurant sothat he could rob someone.
Finally, we reject defendant's contention in his pro se supplemental brief that he was[*3]deprived of effective assistance of counsel becausehis trial attorney failed to object to the verdict as being repugnant. Even assuming,arguendo, that it was factually illogical for defendant to have committed attemptedrobbery in the second degree but not attempted burglary in the second degree, weconclude that it was not legally or theoretically impossible (see People v Muhammad, 17NY3d 532, 545 [2011]; People v McFadden, 90 AD3d 413, 414 [2011], lvdenied 18 NY3d 995 [2012]), inasmuch as the acquittal on the attempted burglarycharges was not "conclusive as to a necessary element" of the attempted robbery charges(People v Tucker, 55 NY2d 1, 7 [1981]). Where, as here, "there is a possibletheory under which a split verdict could be legally permissible, it cannot be repugnant,regardless of whether that theory has evidentiary support in a particular case"(Muhammad, 17 NY3d at 540).
All concur except Fahey, J.P., and Peradotto, J., who dissent and vote to reverse thejudgment in accordance with the following memorandum.
Fahey, J.P., and Peradotto, J. (dissenting). We respectfully dissent because, in ourview, the evidence is legally insufficient to support defendant's conviction of attemptedrobbery in the second degree beyond a reasonable doubt (Penal Law §§100.00, 160.10 [1], [2] [b]). We would therefore reverse the judgment and dismiss theindictment.
It is "an essential of the due process guaranteed by the Fourteenth Amendment thatno person shall be made to suffer the onus of a criminal conviction except uponsufficient proof—defined as evidence necessary to convince a trier of fact beyonda reasonable doubt of the existence of every element of the offense" (Jackson vVirginia, 443 US 307, 316 [1979], reh denied 444 US 890 [1979]). "Anindispensable element of the crime of attempted robbery is an intent to forcibly stealproperty" (People v Mateo,13 AD3d 987, 988 [2004], lv denied 5 NY3d 883 [2005]; see PenalLaw § 160.00; People vPagan, 81 AD3d 86, 91 [2010], affd 19 NY3d 91 [2012]; People vMiller, 87 NY2d 211, 214 [1995]). Thus, unlike, for example, an attempted burglaryconviction (see People v Mahboubian, 74 NY2d 174, 193 [1989]), "[a]conviction of [attempted] robbery cannot stand without proof of specific intent to steal"(People v De Jesus, 123 AD2d 563, 564 [1986], lv denied 69 NY2d 745[1987]; see People v Morales, 130 AD2d 366, 367-368 [1987]). Further, "[t]heuse [or threatened use] of force alone is not evidence of an intention to steal" (Peoplev Rivera, 184 AD2d 288, 291 [1992], appeal dismissed 81 NY2d 758[1992]).
Here, we conclude that the evidence is legally insufficient to establish beyond areasonable doubt that defendant specifically intended to commit robbery as charged inthe indictment, i.e., that he intended to "forcibly steal property from an employee of theWendy's restaurant," as opposed to any number of other crimes or misdeeds (seeMateo, 13 AD3d at 988; People v Sharpe, 222 AD2d 534, 534 [1995];People v Lopez, 58 AD2d 516, 516 [1977]). Unlike many attempted robberycases, here there is no post-arrest admission by defendant or his unidentified companionthat their acts were committed with a specific criminal purpose (see People vBracey, 41 NY2d 296, 301 [1977], rearg denied 41 NY2d 1010 [1977]; cf. People v Montanez, 57AD3d 1366, 1367 [2008], lv denied 12 NY3d 857 [2009]; People vStewart, 174 AD2d 583, 584 [1991], lv denied 78 NY2d 1081 [1991]). Insome cases intent may be inferred from the act itself; however, "in many, if not mostattempt cases, it will not be possible to look only at the act and its natural consequencesto discover intent since by definition of a criminal attempt the ultimate consequences donot ensue" (Bracey, 41 NY2d at 301 [internal quotation marks omitted]). Here,the fact that defendant and his companion in this case knocked on the door of a closedrestaurant while armed with handguns and wearing masks "does not unequivocallyestablish that [they] intended to commit a robbery" (id.). While it is quite unlikelythat their intentions were innocent, defendant and his companion may have intended, forexample, to kidnap, rape, assault, or menace an employee of the restaurant, or to gainentry to the restaurant to commit some other crime or mischief therein (seeid.; see generally Mateo, 13 AD3d at 988; Matter of Amar A., 172AD2d 426, 426 [1991], lv denied 79 NY2d 751 [1991]). "The act does not speakfor itself, as it rarely will in the case of criminal attempt" (Bracey, 41 NY2d at301).[*4]
Of course, "intent [may] also 'be inferred fromthe defendant's conduct and the surrounding circumstances' " (id.; see Peoplev Steinberg, 79 NY2d 673, 682 [1992]; People v Durden, 219 AD2d 605,606 [1995], lv denied 87 NY2d 900 [1995]). In Bracey (41 NY2d at301), upon which the majority relies, the Court of Appeals noted that the fact that one ofthe defendants "entered a stationery store with a gun in his hand [did] not unequivocallyestablish that he intended to commit a robbery." The Court concluded, however, that theconduct of the defendants, coupled with the surrounding circumstances, was sufficient toestablish their intent to commit robbery (id. at 301-302). Of critical importance inBracey were the defendants' actions before one of the defendants enteredthe store brandishing a gun (see id. at 297-299, 302). Prior to that point in time,the defendants entered the store together, cased the area, and purchased a token amountof candy (id. at 297). They then left the store, walked around the corner, cameback toward the store, and again turned around and walked in the opposite direction(id.). Thereafter, they approached a car parked nearby and one of the defendants,who was holding a canvas shoulder bag, entered the car and handed the bag to the otherdefendant (id.). That defendant returned to the store with the bag, from which helater withdrew the gun (id. at 297-298). Under those circumstances, the Courtconcluded that "the jury could well find that the defendants, who acted togetherthroughout, had reconnoitered the store and returned to rob it. In fact the only thing thatcould have made this intention plainer was an actual demand for money" (id. at301).
Here, by contrast, the evidence established only that defendant and a companionknocked on the back door to Wendy's, and that they possessed what appeared to behandguns. There is no evidence of preparation or prior coordination on the part ofdefendant and his companion, no statements by defendant or his companion thatevidence an intent to steal property, and no actions by either individual that specificallyreflect a larcenous intent as opposed to general criminal intent (see Mateo, 13AD3d at 988; Amar A., 172 AD2d at 426). The fact that defendant fled upon thearrival of the police does not add anything to the proof relative to his specific intent.Although evidence of flight from the police may very well indicate guilt on the part ofthe fleeing suspect (see generally People v Reynolds, 269 AD2d 735, 736 [2000],lv denied 95 NY2d 838 [2000], cert denied 531 US 945 [2000]), it doesnot tend to establish an intent to commit a specific crime. Further, when defendant wastaken into custody, he was not found in possession of any items relevant to criminalintent; the police testified that his backpack contained clothing only. In our view,defendant's "robbery conviction may not rest on so deficient an evidentiary foundation"(De Jesus, 123 AD2d at 564; cf. People v Bryant, 36 AD3d 517, 518 [2007], lvdenied 8 NY3d 944 [2007]; People v Wilson, 10 AD3d 460, 461 [2004], lvdenied 3 NY3d 743 [2004]; People v Tavares, 235 AD2d 325, 326 [1997];People v Harris, 191 AD2d 643, 643-644 [1993], lv denied 81 NY2d1014 [1993]).
The majority concludes that "there is 'not a reasonable possibility' that [defendant]intended to" commit a crime other than robbery because, inter alia, there is no evidencethat "defendant or his accomplice knew any of the Wendy's employees"(emphasis added). We note, however, that none of the three employees testified that theydid not recognize defendant; they testified only that they did not know an individual bythe name of Jafari Lamont. More significantly, because defendant's companion waswearing a mask at the time of the alleged robbery and was never apprehended oridentified, we have no idea whether the companion knew one or more of the employeesinside the restaurant that morning. Further, even if we concede (and we do not) that it ismore probable than not that defendant and his companion were attempting to commitrobbery, that is insufficient to sustain a criminal conviction (see generallyJackson, 443 US at 315-316).
In sum, we conclude that the evidence is legally insufficient to establish beyond areasonable doubt that defendant intended to steal property from an employee of Wendy's(see Mateo, 13 AD3d at 988; People v D'Agostino, 266 AD2d 227, 228[1999], lv denied 94 NY2d 918 [2000]; Sharpe, 222 AD2d at 534).Alternatively, we conclude that County Court's determination in this [*5]nonjury trial that the evidence presented by the Peopleestablished defendant's larcenous intent is against the weight of the evidence (see People v Farkas, 96 AD3d873, 874-875 [2012]; People v Farrell, 61 AD3d 696, 697 [2009]). We wouldtherefore reverse the judgment, dismiss the indictment, and remit the matter to CountyCourt for proceedings pursuant to CPL 470.45. Present—Fahey, J.P., Peradotto,Lindley, Sconiers and Whalen, JJ.