| People v Malcolm |
| 2015 NY Slip Op 06829 [131 AD3d 1068] |
| September 16, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Todd Malcolm, Appellant. |
Lynn W. L. Fahey, New York, N.Y. (Lauren E. Jones of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, John F. McGoldrick, and Tina Grillo of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Griffin, J.), rendered April 8, 2013, convicting him of grand larceny in the fourth degreeand criminal possession of stolen property in the fifth degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is affirmed.
After a trial, the defendant was convicted of grand larceny in the fourth degree basedon evidence that, on separate occasions between August 5, 2012, and August 20, 2012,he stole from a Home Depot store merchandise having an aggregate value of more than$1,000. The defendant was also convicted of criminal possession of stolen property inthe fifth degree based on the August 20, 2012, incident. The evidence adduced at trialshowed that on August 5, 2012, the defendant was observed in the tool corral of a HomeDepot store located in College Point, Queens, loading a shopping cart with power tools.He then proceeded to the back of the store where he exited with the cart of power toolsthrough an emergency door by the lumber area. The defendant loaded the power toolsinto a gray minivan with a black hood, which was waiting with a driver and parkedapproximately 10 feet from the emergency exit. The defendant then fled in the minivan.A Home Depot asset protection specialist testified that the total value of the stolenmerchandise was approximately $940.
On August 13, 2012, the defendant entered the same Home Depot store, filled ashopping cart with two Dyson vacuums, a Dewalt power tool, a Rigid power tool drillset, and a Milwaukee power tool, and exited the store with the items through anemergency exit door located in the rear of the garden area. The defendant loaded thestolen items into the same minivan, which was parked outside the rear garden exit. Theasset protection specialist testified that the Dyson vacuums each sold for $499, theDewalt power tool sold for $299, the Rigid power tool drill set sold for $499, and theMilwaukee power tool sold for $259.
On August 20, 2012, the defendant was observed exiting the minivan in the parkinglot of the same Home Depot and entering the store, where he loaded a shopping cart withfour power drills. He was apprehended by store security while attempting to exit the storewith the merchandise through the fire exit door in the garden area. Another assetprotection specialist testified that the total value of the items taken on this date was$996.
[*2] A person is guilty of grandlarceny in the fourth degree, inter alia, "when he steals property and when. . . [t]he value of the property exceeds one thousand dollars" (Penal Law§ 155.30 [1]). "[T]he People may prosecute for a single crime a defendantwho, pursuant to a single intent and one general fraudulent plan, steals in the aggregateas a felon and not as a petty thief" (People v Cox, 286 NY 137, 145 [1941];see People v Rossi, 5 NY2d 396, 401 [1959]; People v Barry, 46 AD3d 1340, 1341 [2007]; People vFayette, 239 AD2d 696, 697 [1997]; People v Rosich, 170 AD2d 703[1991]). Contrary to the defendant's contention, viewing the evidence in the light mostfavorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), wefind that it was legally sufficient to establish his guilt of grand larceny in the fourthdegree beyond a reasonable doubt. Moreover, upon the exercise of our factual reviewpower, we are satisfied that the verdict of guilt on that count was not against the weightof the evidence (see CPL 470.15 [5]; People v Romero, 7 NY3d 633 [2006]). The evidencepresented at trial demonstrated that the defendant took similar expensive electronicmerchandise from the same store on each occasion, under virtually the samecircumstances, and with the assistance of the driver of the minivan. Contrary to theposition of our dissenting colleague, we find that this evidence sufficiently establishedthat the defendant stole merchandise "with a single [ongoing] intent, carried out insuccessive stages" (People v Rossi, 5 NY2d at 401), and that this was not merelya series of distinct petty thefts (see People v Daghita, 301 NY 223, 225 [1950][affirming the defendant's conviction of a single continuing grand larceny where he stolea "considerable quantity of merchandise over a period of time" from the same store and"used a large portion of it to furnish his home and to outfit his family"]; see alsoPeople v Henderson, 163 AD2d 888 [1990]; cf. People v Seymour, 77 AD3d 976, 980 [2010][insufficient proof that two thefts from the same store constituted a common scheme orplan, where the defendant stole one television during the first incident, a variety ofmerchandise during the second incident, and each theft was perpetrated in a differentmanner, since "there was no evidence of the defendant's intent to commit fraud or of hisintent to engage in a plan of continuous fraud"]).
Furthermore, we disagree with our dissenting colleague that the evidence of thevalue of the merchandise taken on August 13, 2012, was insufficient. After viewing thesurveillance video, the asset protection specialist testified that she recognized themerchandise the defendant wheeled out of the store and loaded into the minivan. Thewitness's testimony concerning the merchandise was consistent with the informationobtained from her mobile scanning device, which tracked the store's inventory. Notably,the total value of the items taken on August 13, 2012, as testified to by the assetprotection specialist, standing alone, exceeded the $1,000 threshold necessary to sustainthe defendant's conviction of grand larceny in the fourth degree (see Penal Law§ 155.30 [1]). To the extent the dissent concludes that the testimony of theasset protection specialist concerning the identity of the items taken on August 13, 2012,was not credible, the witness's credibility "was an issue primarily for the jury todetermine, and we will not substitute our judgment for that of the jurors, who had theadvantage of seeing and hearing the witness testify" (People v Sabatini, 130AD2d 524, 524 [1987]; see People v McCarthy, 293 AD2d 490, 491[2002]).
Viewing the evidence in the light most favorable to the prosecution (see People vContes, 60 NY2d at 620), we find that it was legally sufficient to establish thedefendant's guilt of of criminal possession of stolen property in the fifth degree beyond areasonable doubt (see People v Olivo, 52 NY2d 309, 321 [1981]; see also People v Yagudayev,91 AD3d 888, 890-891 [2012]). Moreover, upon our independent review pursuantto CPL 470.15 (5), we are satisfied that the verdict of guilt as to that crime was notagainst the weight of the evidence (see People v Romero, 7 NY3d at 633).
The defendant's contention that the sentence imposed was improperly based on thecrime of which he was acquitted is unpreserved for appellate review (see CPL470.05 [2]; People vDubois, 116 AD3d 878 [2014]) and, in any event, without merit (see People v Morgan, 27 AD3d579 [2006]; People v Robinson, 250 AD2d 629 [1998]). Moreover, thesentence imposed was not excessive (see People v Suitte, 90 AD2d 80[1982]).
The defendant's remaining contentions are unpreserved for appellate review (seeCPL 470.05 [2]) and, in any event, without merit. Rivera, J.P., Leventhal andRoman, JJ., concur.
Hinds-Radix, J., concurs in part and dissents in part, and votes to modify thejudgment, on the law, by reducing the defendant's conviction of grand larceny in thefourth degree to petit larceny, and vacating the sentence imposed on that count, and as somodified, to affirm the judgment, with the following memorandum: The defendantstands convicted of grand larceny in the fourth degree (Penal Law § 155.30[1]) relating to three instances of shoplifting from a Home Depot store occurring onAugust 5, 2012, August 13, 2012, and August 20, 2012, respectively. His conviction isbased upon a theory that the aggregate monetary value of the items stolen on those threeoccasions exceeds $1,000.
At trial, a Home Depot asset protection specialist testified that on August 5, 2012,she was walking the floor of the subject store and saw the defendant near the powertools. The defendant selected certain power tools, placed them in a shopping cart andthen proceeded to the back of the store, and exited through an emergency door by thelumber area. He put the merchandise inside a gray minivan with a black hood, which waswaiting with a driver, entered the minivan, and left the scene. The asset protectionspecialist testified that the total value of the items stolen was approximately $940.
On August 14, 2012, the same asset protection specialist arrived at work anddiscovered that the zip tie on the emergency door in the garden area had been cut. Shereviewed the surveillance videotape footage for the previous day—August 13,2012—and then went to the sales floor to check a mobile scanning device, whichindicated that two Dyson vacuums, a Dewalt power tool drill set, a Rigid power tool, anda Milwaukee power tool were missing from the shelves.
The surveillance videotapes of the main entrance and the rear garden exit fromAugust 13, 2012, were played for the jury. The asset protection specialist identified thedefendant on the videotapes. The defendant exited from the garden area and loaded themerchandise into what appeared to be same gray minivan that the defendant used onAugust 5, 2012. She identified the items stolen as the same Dyson vacuums, Dewaltpower tool drill set, Rigid power tool, and Milwaukee power tool that were missing fromthe shelves. She testified that she recognized the items from the appearance of the boxesloaded into the minivan. An observation of the videotape reveals that the appearance ofthe boxes on the videotapes is barely visible. The asset protection specialistacknowledged that she could not read any lettering on the boxes and had to identify theboxes by their colors, which were not distinctive. After refreshing her recollection, shetestified that the Dyson vacuums sold for $499, the Dewalt power tool drill set sold for$299, the Rigid power tool sold for $499, the Milwaukee power tool sold for $259.
On the evening of August 20, 2012, another asset protection specialist wasconducting surveillance on the floor when he saw the defendant in the power tool area.The defendant pushed on the back emergency exit door, but never left the store. He wasapprehended with a Dewalt drill priced at $199, a Makita drill priced at $279, and twoMilwaukee drills priced at $259 each, totaling $996 in value.
The defendant was convicted of grand larceny in the fourth degree (Penal Law§ 155.30 [1]) as a lesser included offense of grand larceny in the thirddegree, based upon the theory that the value of the property exceeded $1,000. He wasalso convicted of criminal possession of stolen property in the fifth degree (Penal Law§ 165.40), which does not require proof of the monetary value of theproperty.
A primary issue in this case is whether the value of property shoplifted from HomeDepot on the three separate occasions may be aggregated to raise of level of thedefendant's crime from petit larceny to grand larceny based upon "a single intent, carriedout in successive stages" (People v Rossi, 5 NY2d 396, 401 [1959]). Thisconcept was first enunciated by the Court of Appeals in People v Cox (286 NY137, 141 [1941]), which held that, "where property is stolen from the same owner andfrom the same place in a series of acts, those acts constitute a single larceny regardless ofthe time elapsing between them, if the successive takings be pursuant to a single intentand design and in execution of a common fraudulent scheme." The taking in that caseinvolved stealing nickel subway fares pursuant to a "general fraudulent design which wascreated before the [*3]misappropriations began andcontinued throughout the entire period" (id. at 143). The Court noted that"distinct larcenies coincident solely in method, place or time" would not be enough(id.). Likewise, People v Rossi (5 NY2d 396 [1959]) involved afraudulent scheme to steal money from a health insurer by submitting false claims.
In People v Seymour(77 AD3d 976, 980 [2010]), this Court ruled that the proof of successive thefts ofmerchandise from same store (also Home Depot) was insufficient for aggregation, "asthere was no evidence of the defendant's intent to commit fraud or of his intent to engagein a plan of continuous fraud," which was defined as larceny by false pretenses, falsepromise, or embezzlement (seePeople v Perry, 114 AD3d 1282 [2014] [pension fraud]; People v Barry, 46 AD3d1340 [2007] [embezzlement]; People v Tighe, 2 AD3d 1364 [2003] [larceny by falsepretenses and false promise]; People v Bastian, 294 AD2d 882 [2002] [larceny byfalse promise]; People v Rosich, 170 AD2d 703 [1991] [Medicaid fraud];People v Lofton, 73 Misc 2d 285 [Crim Ct, NY County 1973] [larceny by falsepretenses]).
The instant case involves shoplifting as opposed to a scheme to defraud. In supportof the claim that the value of goods stolen in separate shoplifting incidents which do notinvolve a scheme to defraud may be aggregated, the majority cites People vDaghita (301 NY 223 [1950]). In that case, the Court of Appeals upheld thedefendant's conviction of grand larceny arising from his theft of a considerable quantityof merchandise over a period of time from the same store. The defendant, a policeman,obtained access to the store at night with the aid of his accomplice, the night watchman atthe store, and on all but one occasion used the authority of his policeman's uniform to aidin the theft (see People v Daghita, 276 App Div 20 [1949], mod 301 NY223 [1950]). In effect, the defendant and the night watchman were acting in concert toembezzle merchandise from the night watchman's employer, aided by the defendant'sfalse pretense that he was acting in his capacity as a policeman. People vHenderson (163 AD2d 888 [1990]), which is also cited by the majority, involved afraudulent scheme whereby an accomplice provided the defendant with fraudulent salesreceipts for the items stolen.
In the instant case, which involved successive trespassory takings, there was noevidence of a fraudulent scheme which would permit aggregation. Conceivably a singleongoing intent could be established without evidence of a fraudulent scheme, if there isother evidence of a single plan. However, in this case there is no evidence of a singleplan. The fact that the defendant went back to the same Home Depot was not evidencethat when he went there the first time, on August 5, 2012, or the second time, on August13, 2012, he planned to do so on subsequent occasions. Each time the defendantsucceeded, he may have formed a new intent to return, because he succeeded.
Further, the evidence of the value of the items taken on August 13, 2012, which thePeople claim exceeds the $1,000 threshold, is insufficient. The testimony as to the valueof the items stolen was based upon testimony as to what items were missing from thestore's shelves—not what items were taken by the defendant. The store's assetprotection specialist attempted to identify the items stolen by the defendant by viewingboxes which are barely visible on a videotape of the theft. She acknowledged that shecould not read any lettering on the boxes and had to identify the boxes by their colors,which were not distinctive.
Accordingly, I would modify the defendant's conviction of grand larceny in thefourth degree to petit larceny, and vacate the sentence imposed on that count. Since thedefendant has already served the maximum sentence allowed for the class Amisdemeanor of petit larceny, we would need not remit for resentencing on that count(see People v McKinney, 91AD3d 1300 [2012]).