People v. Medina

• Decision Date: 17 November 2011
• Citation: 18 N.Y.3d 98,2011 N.Y. Slip Op. 08224,960 N.E.2d 377,936 N.Y.S.2d 608
• Parties: The PEOPLE of the State of New York, Respondent, v. Juan MEDINA, Appellant.
• Court: New York Court of Appeals Court of Appeals

18 N.Y.3d 98
2011 N.Y. Slip Op. 08224
936 N.Y.S.2d 608
960 N.E.2d 377

The PEOPLE of the State of New York, Respondent,
v.
Juan MEDINA, Appellant.

Court of Appeals of New York.

Nov. 17, 2011.

[936 N.Y.S.2d 609]

Cahill Gordon & Reindel LLP, New York City (Noah H. Bishoff of counsel), and Legal Aid Society, Criminal Appeals Bureau (Steven Banks and Andrew C. Fine of counsel) for appellant.

Robert T. Johnson, District Attorney, Bronx (T. Charles Won, Joseph N. Ferdenzi and Karen Swiger of counsel), for respondent.

[936 N.Y.S.2d 610]

[18 N.Y.3d 100] OPINION OF THE COURT Chief Judge LIPPMAN.

[960 N.E.2d 379] The question before the Court in this appeal from a first-degree robbery conviction is whether the trial court's failure to charge the jury with the statutory definition of “appropriate” [18 N.Y.3d 101] and/or “deprive,” which forms part of the definition of larcenous intent, is reversible error. We hold that it is.

The Appellate Division, although reducing the sentence, upheld the first-degree robbery conviction, finding the claimed omission from the jury charge unpreserved, and in any event non-prejudicial (67 A.D.3d 548, 889 N.Y.S.2d 168 [1st Dept.2009] ). A Judge of this Court granted defendant leave to appeal (15 N.Y.3d 776, 907 N.Y.S.2d 464, 933 N.E.2d 1057 [2010] ) and we now reverse.

On November 23, 2004, defendant, a paid informant for the Drug Enforcement Administration (DEA),¹ participated in an unauthorized break-in at the home that Jose Oleaga shared with his wife Jenny Pena and their two daughters. Defendant was accompanied by another man and a woman. When the three arrived at the front door of the home, the woman stood in front of the peephole and requested to see the person who rented apartments. Pena, who rented apartments, instructed Oleaga to open the door and he did so. Defendant and the other man then entered the apartment and Oleaga immediately fled, followed by the man who had accompanied defendant to the apartment. Defendant, who was now in the apartment alone with Pena and her children, told Pena to lie down so that he could tie her up. However, when Pena informed him that her children were at home, he instructed her to proceed to where the children were. As they walked through the apartment, Pena observed defendant take her cell phone from a computer desk. When they reached the master bedroom where they found one of Pena's daughters, Pena informed defendant that her other daughter was in another bedroom. They went into the daughter's bedroom where Pena and defendant had a conversation. During that time, defendant repeatedly said “I am your friend,” and again told Pena to lie down so that he could tie her up. She refused to lie down and defendant told her to sit down. He then left the apartment. Meanwhile, Oleaga flagged down a police car and the police searched for, but were unable to find, the man who had chased him. Minutes later, the police returned to the apartment building and observed defendant still in the area.

Defendant told police officers that he was a DEA informant and was trying to stop a robbery. A police officer asked defendant [18 N.Y.3d 102] if he had anything that he should not have and defendant replied that he was carrying a gun in his right jacket pocket. The officer then searched defendant and found in defendant's jacket pockets an unloaded gun, two bullets, a roll of duct tape, a pair of rubber gloves, and three cell phones. It was later discovered that one of the cell phones belonged to defendant and the others belonged to Oleaga and Pena. Although they did not agree on the exact amount, both Pena and Oleaga later claimed that several thousand dollars were missing from a drawer in their bedroom. No cash was recovered from defendant upon his arrest.

[936 N.Y.S.2d 611]

[960 N.E.2d 380] Defendant was placed into the car of a second police officer. Defendant attracted the attention of that officer, who had not yet entered the car, by banging his head against the car window and the two had a conversation. The officer testified that defendant told him that “they” had come to defendant's house, asked him if he wanted to make some money, and when defendant replied in the affirmative, handed defendant a gun in order to commit a robbery. Defendant reported that a white Suburban and a Ford Taurus were involved in the robbery and that a person named Nelson had given him the gun. A Ford Taurus, containing rubber gloves and a handgun, was recovered at the scene. Police gave defendant permission to call Nelson Guerrero and defendant attempted to do so. Prior to this incident, defendant had informed on Guerrero to the DEA and had turned over drugs to the DEA that he had obtained from Guerrero.

At the police precinct, a third officer interviewed defendant and drove defendant to the location where defendant told him the robbery had been planned. Defendant showed the officer Guerrero's home and the business owned by Guerrero's mother. From information provided by defendant, police were able to identify the other people involved in the robbery.

Defendant was indicted on 17 counts, including two counts of robbery in the first degree, burglary in the first and third degrees, and attempted burglary in the second degree.

As is relevant here,

“[a] person is guilty of robbery in the first degree when he forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime ...

...