People v. Gordon, 100

• Decision Date: 12 June 2014
• Docket Number: No. 100,100
• Citation: 992 N.Y.S.2d 700,2014 N.Y. Slip Op. 04227,16 N.E.3d 1178,23 N.Y.3d 643
• Parties: The PEOPLE of the State of New York, Appellant–Respondent, v. Hazel E. GORDON, Respondent–Appellant.
• Court: New York Court of Appeals Court of Appeals

23 N.Y.3d 643
16 N.E.3d 1178
992 N.Y.S.2d 700
2014 N.Y. Slip Op. 04227

The PEOPLE of the State of New York, Appellant–Respondent
v.
Hazel E. GORDON, Respondent–Appellant.

No. 100

Court of Appeals of New York.

June 12, 2014.

P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for appellant-respondent.

Aaron A. Louridas, Delmar, for respondent-appellant.

OPINION OF THE COURT

RIVERA, J.

16 N.E.3d 1180

In this appeal, we conclude that the People's failure to recover stolen property from defendant does not forestall their ability to establish that her conscious objective in threatening or using physical force was to prevent or overcome resistance to the taking or retention of that stolen property. We therefore modify the Appellate Division order to reinstate defendant's convictions of robbery in the first and second degrees; and to remit the case to the Appellate Division for consideration of the facts; and, as so modified, affirm.

I.

Defendant Hazel Gordon was charged with, among other counts, robbery in the first and second degrees (Penal Law §§ 160.15[3] ; 160.10[1], [2][a] ), and assault in the second degree (Penal Law § 120.05[2] ), stemming from events during a visit by defendant to a department store in a mall outside Albany. Defendant went to the store with her teenage son, her friend and subsequent codefendant Gloria Wheatley, and a toddler. Based on her conduct while in the store, security personnel suspected that defendant stole merchandise, and thereafter followed and stopped the group as they left. Police eventually arrested defendant in the mall

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parking lot as she attempted to escape, and she and Wheatley were tried together. No merchandise was recovered from defendant or her companions.

At trial, the People presented testimony from Rayon James, a loss prevention officer, who tracked defendant with surveillance cameras, and Michael Lisky, a security guard, who followed defendant throughout the store. James testified that he grew suspicious as he observed defendant and Wheatley browse in the jewelry department. Specifically, he observed defendant select two sets of earrings from a display rack, place one pair

among a pile of clothes she held in her arms, and the second on top of that pile. According to James, the manner in which defendant handled the earrings was “very typical of ... somebody who is shoplifting.” He directed Lisky to follow defendant and Wheatley.

James continued to track defendant and Wheatley with security cameras as they walked from the jewelry to the infant/maternity department, located close to the back of the store. He testified that as defendant walked, she “began removing the jewelry from the backing ... [and] dropping [the backings] on the floor.” James also observed Wheatley remove backings from a third pair of earrings. After the women moved away, Lisky walked to the infant/maternity department and recovered three pairs of backings from the store floor. He then continued to follow defendant and Wheatley.

Defendant made no purchases during the remainder of time she spent in the store. She did, however, make four stops to the layaway counter. Each time, defendant placed at least one item on layaway and left the counter without any merchandise visibly in her possession.¹

Defendant eventually met her son, and they exited the store with Wheatley and the toddler. James observed their departure on the store cameras and instructed Lisky to follow the group into the mall corridor. James then exited the security booth to assist Lisky.

Before James arrived, Lisky approached defendant and her companions just outside the store. After he identified himself as a store security guard and asked her to return to the store because she had “merchandise that's not paid for,” defendant “began yelling and screaming,” refused to return to the store, and denied stealing anything. When Lisky stepped in front of defendant, she began “pounding” on his chest with “a closed clenched fist.” Lisky then placed his hands on defendant in an attempt to stop her from leaving.

James arrived soon thereafter, entered the fracas, and pushed defendant off of Lisky. He told defendant that they would call the police if she did not return to the store. According to Lisky, defendant then reached “inside her bag and pulled two large pens out and then held them in her hand ... [and] started

swiping at [the guards] trying to stab [them].” James testified that as defendant waved the pens she yelled, “I will kill you, blood clot.” The security guards backed off, called the police, and followed from a safe distance as the group walked towards the mall exit.

When they approached the exit, Lisky tried to grab the pens from defendant in an attempt to delay her departure. At that point, according to James, defendant's son came up behind James and pulled out a knife. The son ran out of the mall when James turned to face him, and James chased him through the parking lot and down a bike path between the mall and a

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neighboring cemetery. According to James, as he ran, the son “put[ ] his hands in his pocket ... [and] toss[ed] things ... into the cemetery area.” James testified that he thought defendant passed stolen merchandise to her son and that the son tossed this stolen property into the cemetery. After the son's arrest, neither merchandise nor a knife was recovered from him, nor was anything found during a subsequent search of the cemetery.

Lisky followed defendant and Wheatley into the mall parking lot where the women entered a car. He approached the car, opened its door, and unsuccessfully attempted to remove defendant's keys from the ignition. Lisky backed off when defendant tried to swipe him again with the pens, and defendant then “took off” through the parking lot. Undeterred, Lisky took a photo of her license plate, called the police, and followed defendant on foot.

Another store employee, Lance Pappas, testified that he was on a break when he observed the events in the parking lot and went to the car just as Lisky attempted to take the keys from defendant. When defendant pulled away, Pappas ran through the parking lot and stood in front of her car in an attempt to stop her departure. Several witnesses testified that they saw defendant intentionally swerve the car in Pappas's direction and hit him. Pappas fell, injuring his rib cage.

Defendant continued driving until she reached the place where the police were holding her son. She then exited the car and ran towards the officers. After she ignored orders to stop, an officer subdued defendant with a taser, and arrested her and Wheatley.

At the trial, the People submitted extensive video footage which corroborated the live testimony. The footage depicted

defendant and Wheatley in the jewelry department, defendant's suspicious handling of the earrings as described during James's testimony, as well as defendant meandering through the store and making several stops at the layaway department. Additional footage depicted the altercation between defendant and the security personnel directly outside the store's exit.

The jury found defendant guilty of one count of robbery in the first degree, two counts of robbery in the second degree, and one count of assault in the second degree.² The court sentenced defendant to an aggregate term of five years' imprisonment followed by five years' postrelease supervision.

On appeal, defendant challenged her convictions as based upon legally insufficient evidence. On the robbery counts, she alleged that because the earrings were not recovered from her or her companions, the jury could not reasonably infer that she threatened or used force to retain possession of that property. With respect to the assault count, she claimed the People failed to establish that it was her conscious objective to cause physical injury to Pappas.

The Appellate Division modified the Supreme Court judgment by reducing defendant's robbery convictions to petit larceny; remitted the matter to Supreme Court for resentencing; and, as so modified, affirmed (see People v. Gordon, 101 A.D.3d 1158, 955 N.Y.S.2d 430 [3d Dept.2012] ). The court concluded there was insufficient evidence to support the robbery convictions as “no stolen property was found in the possession of defendant or either of her accomplices” and, thus, the jury could not reasonably infer that she threatened or used force to prevent or overcome resistance to the taking or retention of such property (101 A.D.3d at 1159, 955 N.Y.S.2d 430 ). However, the court concluded that

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there was sufficient evidence to support the lesser included offense of petit larceny because the “evidence establish[ed] that defendant, while still in the store, removed and discarded the cardboard backing from several pairs of earrings” (id. at 1160, 955 N.Y.S.2d 430 ). The court rejected defendant's legal sufficiency challenge to her assault conviction (see id. ), and concluded her remaining contentions were either unpreserved or lacked merit (see id. at 1160–1161, 955 N.Y.S.2d 430 ).

A Judge of this Court granted the...