People v. Cantoni

• Decision Date: 01 June 2016
• Citation: 34 N.Y.S.3d 454,2016 N.Y. Slip Op. 04232,140 A.D.3d 782
• Parties: The PEOPLE, etc., respondent, v. Greg CANTONI, appellant.
• Court: New York Supreme Court — Appellate Division

140 A.D.3d 782
34 N.Y.S.3d 454
2016 N.Y. Slip Op. 04232

The PEOPLE, etc., respondent,
v.
Greg CANTONI, appellant.

Supreme Court, Appellate Division, Second Department, New York.

June 1, 2016.

34 N.Y.S.3d 456

Seymour W. James, Jr., New York, N.Y. (Svetlana M. Kornfeind of counsel), for appellant, and appellant pro se.

Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, Kayonia Whetstone, and Jonathan K. Yi of counsel), for respondent.

L. PRISCILLA HALL, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and HECTOR D. LaSALLE, JJ.

140 A.D.3d 782

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Blumenfeld, J.), rendered November 10, 2011, convicting him of attempted robbery in the second degree, reckless endangerment

34 N.Y.S.3d 457

in the second degree, criminal possession of stolen property in the third degree, and unauthorized use of a vehicle in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law and as a matter of discretion in the interest of justice, the count of the indictment charging the defendant with attempted robbery in the second degree is dismissed, and the matter is remitted to the Supreme Court, Queens County, for a hearing in accordance herewith and thereafter for a new determination of those branches of the defendant's motions pursuant to CPL 30.30 which were to dismiss the indictment on the ground that he was denied his statutory right to a speedy trial, and, if the subject branches of the motions are denied, for a new trial on the remaining counts of the indictment.

Contrary to the People's contention, the defendant's challenge

140 A.D.3d 783

to the legal sufficiency of the evidence supporting his conviction of attempted robbery in the second degree on the ground that the People failed to prove his larcenous intent is preserved. “A general objection ... is sufficient to preserve an issue for [appellate] review when [as here] the trial court ‘expressly decided the question raised on appeal’ ” (People v. Graham, 25 N.Y.3d 994, 997, 10 N.Y.S.3d 172, 32 N.E.3d 387, quoting CPL 470.05[2] ; see People v. Smith, 22 N.Y.3d 462, 465, 982 N.Y.S.2d 809, 5 N.E.3d 972 ; People v. Richberg, 123 A.D.3d 946, 998 N.Y.S.2d 454 ).

“The standard for reviewing the legal sufficiency of evidence in a criminal case is whether ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt’ ” (People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932, quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 [emphasis omitted] ). As relevant here, “[i]n order to sustain a conviction for robbery ... the People must establish that [the] defendant had the requisite ... larcenous intent,” which means “the ‘intent to deprive another of property or to appropriate the same to himself or to a third person’ ” (People v. Medina, 18 N.Y.3d 98, 103, 936 N.Y.S.2d 608, 960 N.E.2d 377, quoting Penal Law § 155.05[1] ; see Penal Law § 160.00 ).

The concepts of “deprive” and “appropriate” “ ‘connote a purpose ... to exert permanent or virtually permanent control over the property taken, or to cause permanent or virtually permanent loss to the owner of the possession and use thereof’ ” (People v. Medina, 18 N.Y.3d at 105, 936 N.Y.S.2d 608, 960 N.E.2d 377, quoting People v. Jennings, 69 N.Y.2d 103, 118, 512 N.Y.S.2d 652, 504 N.E.2d 1079 [internal quotation marks omitted] ). For that reason, “[t]he mens rea element of larceny ... is simply not satisfied by an intent temporarily to use property without the owner's permission” (People v. Jennings, 69 N.Y.2d at 119, 512 N.Y.S.2d 652, 504 N.E.2d 1079 ).

Here, the People presented proof that, in attempting to evade police officers who were trying to pull him over, the defendant crashed his vehicle, exited the car, and approached a white Honda being driven by a young woman. The defendant put one hand on the door handle and put his fingers into the opening above the window, which was lowered slightly. The defendant then retracted his hand, fled on foot, and was apprehended. From this evidence, a jury could rationally infer that the defendant intended to take the Honda to escape the police. To prove robbery, however, the People had to do more than prove that the defendant intended to take

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the car to escape the police (cf. Penal Law § 165.08 ). They had to prove, in addition, that he intended to either “exert permanent or virtually permanent

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control over the property ” (People v. Medina, 18 N.Y.3d at 105, 936 N.Y.S.2d 608, 960 N.E.2d 377 ), or to “dispose of [it] in such manner or under such circumstances as to render it unlikely that [the] owner [would] recover [it]” (Penal Law § 155.00[3] ). The People did not offer any evidence from which such an inference could be made (see People v. Montgomery, 39 A.D.2d 889, 333 N.Y.S.2d 584 ; cf. People v. Watkins, 117 A.D.3d 1092, 1093, 986 N.Y.S.2d 585 ; People v. Brightly, 148 A.D.2d 623, 539 N.Y.S.2d 86 ). Contrary to the People's contention, the mere fact that there is no affirmative evidence of an intent on the part of the defendant to only deprive the owner of the car temporarily does not satisfy the People's burden of proving an intent to deprive the owner of her property permanently. Accordingly, the conviction of attempted robbery in the second degree must be reversed, and that count of the indictment dismissed.

Prior to trial, the defendant made two motions pursuant to CPL 30.30 to dismiss the indictment on the ground that he was deprived of his statutory and constitutional rights to a speedy trial. The motions were denied without a hearing. After weighing the relevant factors, the Supreme Court properly denied, without a hearing, that branch of the defendant's second CPL 30.30 motion which asserted violation of his constitutional right to a speedy trial (see People v. Allen, 134 A.D.3d 730, 20 N.Y.S.3d 583 ; People v. Chance, 105 A.D.3d 758, 962 N.Y.S.2d 620 ). However, the Supreme Court erred in summarily denying those branches of the defendant's motions which alleged a violation of his statutory speedy trial rights.

Pursuant to CPL 30.30(1)(a), a court must grant a motion to dismiss an indictment charging a felony offense where the People are not ready for trial within six months of commencement of the criminal action, which, in the present case, is a period of 182 days. Where, as here, the defendant meets his initial burden of showing the existence of a delay greater than six months, the burden shifts to the People to prove that certain periods within that time should be excluded (see People v. Allard, 113 A.D.3d 624, 625, 977 N.Y.S.2d 904 ; People v. Headley, 100 A.D.3d 775, 776, 954 N.Y.S.2d 121 ).

After excluding certain time periods,...