People v. Britto

• Citation: 402 N.Y.S.2d 546,93 Misc.2d 151
• Parties: The PEOPLE of the State of New York v. Ronald BRITTO, Defendant.
• Decision Date: 16 February 1978
• Court: New York City Court

Page 546

402 N.Y.S.2d 546

93 Misc.2d 151

The PEOPLE of the State of New York v. Ronald BRITTO, Defendant.

Criminal Court of the City of New York, Bronx County, Part AP 3.

Feb. 16, 1978.

Mario Merola, Dist. Atty., Bronx County by Thomas W. Cullen, New York City, for the People.

Lewis E. Alperin, Mount Vernon, for defendant.

DECISION

EVE M. PREMINGER, Judge:

This is a motion to dismiss at the end of the People's case in a shoplifting case. The People presented one witness, a securi supervisor for a Pathmark supermarket. He testified that he observed the defendant in the store placing paper towels and other items in a brown paper bag and then putting six or seven ham steaks under his belt. He then saw the defendant walk by the registers without paying, and come near his observation office, still within the store. The supervisor stopped him, asked for a receipt, and received instead the brown paper bag accompanied by defendant's statement that "You got me have the meat. I'm leaving." The supervisor retrieved the meat and restrained defendant when he attempted to leave the store.

It is the defendant's claim that this evidence is insufficient to sustain a conviction for petty larceny because the defendant at no time left the store with merchandise.

There are a number of myths about the criminal law, comfortably shared and nourished by those in the street, the business community and sometimes, the courts. One of these is the belief that an observed shoplifter acts with impunity unless and until he or she leaves the store with the goods. So strong is this belief that the majority of store detectives are instructed to refrain from stopping the suspect anywhere inside the premises; although the likelihood of apprehension is thus enormously decreased (see 62 Yale L. Journal 788 (1953)). And recently in People v. Parrett, 90 Misc.2d 541, 394 N.Y.S.2d 809 (Nass.Co.Dist.Ct.1977), one of my brethren dismissed a case against an accused shoplifter who had secreted goods in her handbag because:

"The court has combed through numerous decisions involving 'shoplifting' and not a single case of record appears where a defendant was found guilty having been apprehended before leaving the premises of the store. In this court's opinion that is an essential element of guilt" (90 Misc.2d at 544, 394 N.Y.S.2d at 811).

Although my learned colleague is correct that the New York courts have never spoken directly on this point, every jurisdiction that has considered the issue has reached a conclusion opposite to the Parrett case.

In Bradovich v. United States, 305 Mich. 329, 9 N.W.2d 560 (1943), the Supreme Court of Michigan held that a person who had taken a jacket from a rack and concealed it in his own clothing had completed the larceny when the clothing was concealed. And in Illinois, the courts have found completed larcenies whenever the defendants' "actions were not those of a prospective customer . . . but rather those of one who feloniously intended to steal the articles" (365 Ill. at 331, 6 N.E.2d at 668), regardless of the fact that the defendants had not left the store (see, e. g., People v. Baker, 365 Ill. 328, 6 N.E.2d 665 (1937); People v. Lardner, 300 Ill. 264, 133 N.E. 375 (1921)).

In a case almost identical to the instant case, the Supreme Court of Vermont (State v. Grant, 373 A.2d 847 (1977)) recently held that a defendant who had placed two cartons of cigarettes under his shirt had "wrongfully assumed possession of the cigarettes and had carried them away with the intent of depriving the owner thereof" although he was apprehended within the supermarket.

To the same effect are McRae v. United States, 222 A.2d 848 (D.C.App.1960) and Groomes v. United States, 155 A.2d 73 (D.C.Mun.App.1959).

An examination of the New York law relating to larceny in general leads this court to conclude that the law in New York is no different from the above-cited jurisdictions.

As early as Harrison v. People, 50 N.Y. 518 (1872), our Court of Appeals affirmed the basic common law principles of larceny. There the defendant had placed his hand in the victim's pocket and moved a wallet three inches when its owner felt the intrusion and pulled away. The defendant claimed that the larceny had not been completed when he was discovered. The court held that two things must always be proven that the defendant has grasped the article in question, known at common law as caption, and has removed it from its resting place, known as asportation. The court emphasized that the asportation by the defendant need be but for a moment to complete the larceny.

These principles were followed in People v. Frank, 176 Misc. 416, 27 N.Y.S.2d 227 (Utica City Ct., 1941) where a defendant employee attempted to return goods he had secreted within the store of his employer. The court held that his actions had already gone beyond an attempt, and constituted a completed larceny, pointing out:

"Shoplifting cases are examples of completed larcenies even though the persons have not yet left the premises" (176 Misc. 418, 27 N.Y.S.2d 229).

In United States v. Padilla, 374 F.2d 782 (2d Cir., 1967) the court held that an employee's conduct in hiding goods within his employer's truck

"clearly had crossed the somewhat elusive line between an attempt to steal and a completed theft" (374 F.2d 788).

Recently the Court of Appeals reconsidered the basic elements of...