People v. Barnes

• Decision Date: 03 June 1980
• Citation: 50 N.Y.2d 375,429 N.Y.S.2d 178,406 N.E.2d 1071
• Parties: , 406 N.E.2d 1071 The PEOPLE of the State of New York, Appellant, v. John BARNES, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 178

429 N.Y.S.2d 178

50 N.Y.2d 375, 406 N.E.2d 1071

The PEOPLE of the State of New York, Appellant, v. John BARNES, Respondent.

Court of Appeals of New York.

June 3, 1980.

Eugene Gold, Dist. Atty. (A. David Stern, Asst. Dist. Atty., Brooklyn, of counsel), for appellant.

Martha L. Conforti and William E. Hellerstein, New York City, for respondent.

OPINION OF THE COURT

JASEN, Judge.

Defendant stood convicted of attempted burglary in the third degree (Penal Law, §§ 110.00, 140.20) and attempted petit larceny (Penal Law, §§ 110.00, 155.25) following a nonjury trial in Supreme Court. ¹ On appeal, a divided Appellate Division reversed, 71 A.D.2d 628, 418 N.Y.S.2d 560, on the law, the judgment of conviction and dismissed the indictment, holding that "(t)he guilt of the defendant was not established beyond a reasonable doubt." Our inquiry is limited to the issue whether the People have adequately shouldered the burden of demonstrating defendant's guilt.

Deprived of electrical power, New York City was cast beneath a shroud of blackness on July 13, 1977. In what might be deemed a shopkeeper's nightmare, the city lay bare during the blackout to those who would exploit this unfortunate circumstance for their own personal gain. While such a situation may be said to create an unexpected windfall for the criminal element, it is, without doubt, equally conducive to unfounded accusations of criminal conduct, for it would readily appear that innocent persons out in the night could be the victim of unfortunate circumstance. With these thoughts, we turn to the facts of this case as developed at trial.

Three New York City police officers testified for the prosecution. It appears that by virtue of information received by an unidentified passerby, the officers converged on the premises of the Friendly Frost Appliance Store located at 386 Bridge Street in Brooklyn at approximately 12:30 a. m. on July 14, 1977. They arrived only to find the metal security gate viciously torn from the storefront and the front plate glass window, once lodged in a ledge approximately two feet in height, completely shattered.

Armed with flashlights, Officers George Meyer and John McCarthy entered the store by stepping over the glass-covered ledge, while Officer Thomas Duffy guarded the storefront. The officers stated that the shop's interior was in total disarray; televisions, air conditioners and other electrical appliances were overturned in the aisle and the display shelves contained perceptible vacant spots. The parties stipulated, however, that when the store was closed after the prior working day, it was in a "fine condition".

Officer Meyer testified that he walked to the rear portion of the store, and, while there, heard a noise emanating from the store's office. Shining the beam from his flashlight at the source of the disturbance, Officer Meyer saw defendant, in a crouched position, behind a table or desk. Defendant was ordered to stand up, and was subsequently handcuffed, searched and led from the store. All three officers made in-court identifications of defendant as one of the persons discovered in the appliance store; however, none of the prosecution witnesses could testify that they saw defendant in actual possession of any of the store's merchandise.

After the prosecution rested, defendant took the stand in his own defense and flatly denied being present at the Friendly Frost Appliance Store on July 14, 1977. Defendant testified, in essence, that he was standing peaceably at a different location awaiting the arrival of a bus to take him home. At that time, three officers different from those who testified for the prosecution confronted defendant and, although defendant stated that he was going home, arrested him. No other witnesses appeared for the defense.

The trial court, after hearing the testimony, found defendant's story "totally devoid of credibility" and ultimately found defendant guilty of attempted burglary in the third degree and attempted petit larceny in the third degree. On appeal, the Appellate Division reversed, finding that the prosecution had not met its burden of establishing defendant's guilt beyond a reasonable doubt. The People were granted leave to appeal to this court by permission of the Presiding Justice at the Appellate Division. We now reverse.

Defendant's sole contention in urging reversal of his conviction, obviously accepted by the majority below, is that the People failed to establish beyond a reasonable doubt that he acted with the requisite intent to commit the crimes of which he was found guilty. ² Inasmuch as defendant was convicted of attempted burglary in the third degree and attempted petit larceny, it was incumbent upon the People to prove that defendant harbored an intent "to commit a crime" while unlawfully in the building (Penal Law, §§ 110.00, 140.20) and that he intended to steal property (Penal Law, §§ 110.00, 155.25). ³ Our review of the record leads us to the conclusion that the People satisfied this burden.

At the outset, we reject defendant's contention that the sufficiency of the evidence pertaining to the element of intent must be measured by the so-called "moral certainty" standard. While it is the oft-quoted rule in criminal cases which depend entirely upon circumstantial evidence that " 'the facts from which the inference of the defendant's guilt is drawn must be established with certainty they must be inconsistent with his innocence and must exclude to a moral certainty every other reasonable hypothesis' " (People v. Cleague, 22 N.Y.2d 363, 365-366, 292 N.Y.S.2d 861, 863, 239 N.E.2d 617, 618, quoting People v. Bearden, 290 N.Y. 478, 480, 49 N.E.2d 785), this legal standard does not apply to a situation where, as here, both direct and circumstantial evidence are employed to demonstrate a defendant's culpability. (See, e. g., People v. Licitra, 47 N.Y.2d 554, 558-559, 419 N.Y.S.2d 461, 393 N.E.2d 456; People v. Castillo, 47 N.Y.2d 270, 277-278, 417 N.Y.S.2d 915, 391 N.E.2d 997; People v. Kennedy, 47 N.Y.2d 196, 201-203, 417 N.Y.S.2d 452, 391 N.E.2d 288; Richardson, Evidence (10th ed), § 148, p. 119.) In this case, the prosecution established that defendant was in the store during a time of widespread looting in the course of the blackout by direct evidence the eyewitness testimony of the arresting officers. Hence, the prosecution's case did not rest entirely upon circumstantial evidence and the "moral certainty" standard simply does not apply.

Perhaps defendant seeks to invoke the "moral...