| People v Gordon |
| 2014 NY Slip Op 05566 [119 AD3d 1284] |
| July 31, 2014 |
| Appellate Division, Third Department |
[*1](July 31, 2014)
| 1 The People of the State of New York, Respondent, vHazel E. Gordon, Appellant. |
Aaron A. Louridas, Delmar, for appellant.
P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
Garry, J. Appeal (upon remittal from the Court of Appeals) from a judgment of theSupreme Court (Lamont, J.), rendered April 23, 2010 in Albany County, upon a verdictconvicting defendant of the crimes of robbery in the first degree, robbery in the seconddegree (two counts) and assault in the second degree.
This matter arises from a 2009 incident at a shopping mall in the Town of Colonie,Albany County. Following the prior decision of this Court (101 AD3d 1158 [2012]), theCourt of Appeals granted leave to appeal and, finding the evidence legally sufficient,reinstated defendant's convictions for robbery in the first degree and robbery in thesecond degree (two counts), remitted the case for our consideration of the facts relative tothese convictions, and, as so modified, affirmed (23 NY3d 643 [2014]). Accordingly, we must resolve defendant's contention that the robberyconvictions are against the weight of the evidence.
Where, as here, an acquittal would not have been unreasonable, this Court must viewthe evidence in a neutral light and weigh the probative force of the conflicting testimonyand any rational inferences that may be drawn from the evidence (see People v Danielson, 9NY3d 342, 348 [2007]; People v Dean, 70 AD3d 1193, 1194 [2010]). At trial, aloss prevention officer for a department store in the mall testified that he becamesuspicious when, using security cameras, he saw defendant remove two pairs of earringsfrom a display rack and hide them among clothing in [*2]her arms. After directing a second loss prevention officer tofollow defendant and her female companion, the first officer saw defendant remove thepackaging in which the earrings were displayed and drop it on the floor; her companiondid the same with a third pair of earrings. The second officer testified that he retrievedthe three pieces of packaging from the floor, and they were later introduced intoevidence. Both officers continued to observe the women as they moved through variousareas of the store and were joined by defendant's teenage son. When the group exited thestore, the second officer followed them, identified himself, and asked defendant to returnbecause she had merchandise that had not been paid for. Defendant became irate, deniedstealing anything, and began pounding on the second officer's chest with closed fists.When the first officer arrived, she pulled two pens from her bag, swiped them at theofficers as if to stab them, and threatened to kill them. The officers backed off, calledpolice, and followed the group to the mall exit. There, another confrontation occurred inwhich defendant's son pulled a knife and then fled, pursued by the first officer, who sawhim tossing items from his pockets into a nearby cemetery. The second officer chased thewomen to defendant's car, where the fracas continued as defendant again swiped at himwith pens and injured a store employee by swerving her car toward him as she droveaway; defendant was ultimately subdued by police with a taser. Defendant, hercompanion and her son, as well as defendant's car and the pursuit area, were all searched,but no stolen property was ever recovered. In addition to the officers' testimony and thatof other witnesses, the jury also saw extended security camera footage depictingdefendant's actions inside the store and part of the altercation thereafter.
For purposes of charges of robbery in the first or second degree, a defendantcommits forcible stealing when, during the commission of a larceny, he or she uses orthreatens the immediate use of force against a person in order to "[p]revent[ ] orovercom[e] resistance to the taking of the property or to the retention thereofimmediately after the taking" (Penal Law § 160.00 [1]; see PenalLaw §§ 160.10 [1], [2] [a]; 160.15 [3]). As the Court of Appeals hasrecently instructed, recovery of the property is not necessarily required to support aconviction, and whether a defendant's intent in using force was to retain possession ofstolen property is a question of fact that may be answered based upon reasonableinferences drawn from his or her conduct and the surrounding circumstances (23 NY3d643, 650-651). Where an inference of intent is notunreasonable, it is "within the exclusive domain of the finders of fact, not to be disturbedby [a reviewing court]" (Peoplev Bueno, 18 NY3d 160, 169 [2011] [internal quotation marks and citationomitted]; see People v Smith, 79 NY2d 309, 314-315 [1992]). Here, uponconsideration of the reasonable inferences to be drawn from the evidence and testimonyregarding defendant's suspicious actions in the store and aggressive conduct immediatelythereafter, and according appropriate deference to the jury's factual assessments andcredibility determinations, we find that the verdict was not contrary to the weight of theevidence (compare People vHorton, 106 AD3d 1192, 1194 [2013], lv denied 21 NY3d 1016 [2013];People v Fisher, 52 AD3d1120, 1120-1121 [2008], lv denied 11 NY3d 832 [2008]).
Stein, J.P., Egan Jr., Devine and Clark, JJ., concur. Ordered that the judgment isaffirmed.