People v. Olivo

• Decision Date: 19 February 1981
• Citation: 52 N.Y.2d 309,438 N.Y.S.2d 242,420 N.E.2d 40
• Parties: , 420 N.E.2d 40 The PEOPLE of the State of New York, Respondent, v. Ronald OLIVO, Appellant. The PEOPLE of the State of New York, Respondent, v. Stefan M. GASPARIK, Appellant. The PEOPLE of the State of New York, Respondent, v. George SPATZIER, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 242

438 N.Y.S.2d 242

52 N.Y.2d 309, 420 N.E.2d 40

The PEOPLE of the State of New York, Respondent, v. Ronald OLIVO, Appellant.

The PEOPLE of the State of New York, Respondent, v. Stefan M. GASPARIK, Appellant.

The PEOPLE of the State of New York, Respondent, v. George SPATZIER, Appellant.

Court of Appeals of New York.

Feb. 19, 1981.

Gerald J. Callahan and John F. Middlemiss, Jr., Hauppauge, for appellant in the first above-entitled action.

Patrick Henry, Dist. Atty. (Scott M. Karson, Hauppauge, and Maureen S. Hoerger,

Asst. Dist. Atty., of counsel), for respondent in the first above-entitled action

Elaine Stogel and William E. Hellerstein, New York City, for appellant in the second above-entitled action.

Robert M. Morgenthau, Dist. Atty. (Russell A. Bikoff and Jerrold L. Neugarten, Asst. Dist. Attys., of counsel), for respondent in the second above-entitled action.

Michael W. Holland, East Williston, for appellant in the third above-entitled action.

Denis Dillon, Dist. Atty. (Herbert H. Esrick and William C. Donnino, Asst. Dist. Attys., of counsel), for respondent in the third above-entitled action.

OPINION OF THE COURT

COOKE, Chief Judge.

These cases present a recurring question in this era of the self-service store which has never been resolved by this court: may a person be convicted of larceny for shoplifting if the person is caught with goods while still inside the store? For reasons outlined below, it is concluded that a larceny conviction may be sustained, in certain situations, even though the shoplifter was apprehended before leaving the store.

I

In People v. Olivo, defendant was observed by a security guard in the hardware area of a department store. Initially conversing with another person, defendant began to look around furtively when his acquaintance departed. The security agent continued to observe and saw defendant assume a crouching position, take a set of wrenches and secret it in his clothes. After again looking around, defendant began walking toward an exit, passing a number of cash registers en route. When defendant did not stop to pay for the merchandise, the officer accosted him a few feet from the exit. In response to the guard's inquiry, denied having the wrenches, but as he proceeded to the security office, defendant removed the wrenches and placed them under his jacket. At trial, defendant testified that he had placed the tools under his arm and was on line at a cashier when apprehended. The jury returned a verdict of guilty on the charge of petit larceny. The conviction was affirmed by Appellate Term.

II

In People v. Gasparik, defendant was in a department store trying on a leather jacket. Two store detectives observed him tear off the price tag and remove a "sensormatic" device designed to set off an alarm if the jacket were carried through a detection machine. There was at least one such machine at the exit of each floor. Defendant placed the tag and the device in the pocket of another jacket on the merchandise rack. He took his own jacket, which he had been carrying with him, and placed it on a table. Leaving his own jacket, defendant put on the leather jacket and walked through the store, still on the same floor, by passing several cash registers. When he headed for the exit from that floor, in the direction of the main floor, he was apprehended by security personnel. At trial, defendant denied removing the price tag and the sensormatic device from the jacket, and testified that he was looking for a cashier without a long line when he was stopped. The court, sitting without a jury, convicted defendant of petit larceny. Appellate Term affirmed 102 Misc.2d 487, 425 N.Y.S.2d 936.

III

In People v. Spatzier, defendant entered a bookstore on Fulton Street in Hempstead carrying an attache case. The two co-owners of the store observed the defendant in a ceiling mirror as he browsed through the store. They watched defendant remove a book from the shelf, look up and down the aisle, and place the book in his case. He then placed the case at his feet and continued to browsed. One of the owners approached defendant and accused him of stealing the book. An altercation ensured and when defendant allegedly struck the owner with the attache case, the case opened and the book fell out. At trial, defendant denied secreting the book in his case and claimed that the owner had suddenly and unjustifiably accused him of stealing. The jury found defendant guilty of petit larceny, and the conviction was affirmed by the Appellate Term.

IV

The primary issue in each case is whether the evidence, viewed in the light most favorable to the prosecution, was sufficient to establish the elements of larceny as defined by the Penal Law. To resolve this common question, the development of the common-law crime of larceny and its evolution into modern statutory form must be briefly traced.

Larceny at common law was defined as a trespassory taking and carrying away of the property of another with intent to steal it (e. g., La Fave & Scott, Criminal Law, § 85, at p. 622; see 4 Blackstone's Commentaries, at pp. 229-250). The early common-law courts apparently viewed larceny as defending society against breach of the peace, rather than protecting individual property rights, and therefore placed heavy emphasis upon the requirement of a trespassory taking (e. g., Fletcher, Metamorphosis of Larceny, 89 Harv.L.Rev. 469; American Law Institute, Model Penal Code art. 206, app. A, at p. 101; La Fave & Scott, Criminal Law, § 85, at pp. 622-623). Thus, a person such as a bailee who had rightfully obtained possession of property from its owner could not be guilty of larceny (e. g., Glanvill, Treatise on the Laws and Customs of the Realm of England pp. 128-130 see, e. g., Carrier's Case, Y B Pasch 13 Edw. IV, f.9, pl 5 The result was that the crime of larceny was quite narrow in scope. ¹

Gradually, the courts began to expand the reach of the offense, initially by subtle alterations in the common-law concept of possession (e. g., American Law Institute, Model Penal Code art 206, app. A, p. 101). Thus, for instance, it became a general rule that goods entrusted to an employee were not deemed to be in his possession, but were only considered to be in his custody, so long as he remained on the employer's premises (e. g., 3 Holdsworth, A History of English Law at p. 365). ² And, in the case of Chisser (Raym. Sir.T. 275, 83 Eng.Rep. 142), it was held that a shop owner retained legal possession of merchandise being examined by a prospective customer until the actual sale was made. In these situations, the employee and the customer would not have been guilty of larceny if they had first obtained lawful possession of the property from the owner. By holding that they had not acquired possession, but merely custody, the court was able to sustain a larceny conviction.

As the reach of larceny expanded, the intent element of the crime became of increasing importance, while the requirement of a trespassory taking became less significant, As a result, the bar against convicting a person who had initially obtained lawful possession of property faded. In King v. Pear (1 Leach 212, 168 Eng.Rep. 208), for instance, a defendant who had lied about his address and ultimate destination when renting a horse was found guilty of larceny for later converting the horse. Because of the fraudulent misrepresentation, the court reasoned, the defendant had never obtained legal possession (id., see King v. Semple, 1 Leach 420, 421-324, 168 Eng.Rep. 312, 313; 1 Hawkins, Pleas of the Crown 135, n. 1). Thus, "larceny by trick" was born (see Hall, Theft, Law and Society at p. 40).

Later cases went even further, often ignoring the fact that a defendant had initially obtained possession lawfully, and instead focused upon his later intent (e. g., Queen v. Middleton, LR 2 Cr.Cas.Res. 38 Queen v. Ashwell, 16 QBD 190 The crime of larceny then encompassed, not only situations where the defendant initially obtained property by a trespassory taking, but many situations where an individual, possessing the requisite intent, exercised control over property inconsistent with the continued rights of the owner. ³ During this evolutionary process, the purpose served by the crime of larceny obviously shifted from protecting society's peace to general protection of property rights (Fletcher, Metamorphosis of Larceny, 89 Harv.L.Rev. 469, 519-520, La Fave & Scott, Criminal Law, § 84, at pp. 618-619). ⁴

Modern penal statutes generally have incorporated these developments under a unified definition of larceny (see e. g., American Law Institute, Model Penal Code § 206.1 Case law, too, now tends to focus upon the actor's intent and the exercise of dominion and control over the property (see, e. g., People v. Alamo, 34 N.Y.2d 453, 358 N.Y.S.2d 375, 315 N.E.2d 446; People v. Baker, 365 Ill. 323; People v. Britto, 93 Misc.2d 151, 154, 402 N.Y.S.2d 546). Indeed, this court has recognized, in construing the New York Penal Law, ⁵ that the "ancient common-law concepts of larceny" no longer strictly apply (People v. Alamo, supra, 34 N.Y.2d at p. 459, 358 N.Y.S.2d 375, 315 N.E.2d 446 [emphasis added]).

This evolution is particularly relevant to thefts occurring in modern self-service stores. In stores of that type, customers are impliedly invited to examine, try on, and carry about the merchandise on display. Thus in a sense, the owner has consented to the customer's possession of the goods for a limited purpose (see, e. g., Day v. Grand Union Co., 280 App.Div. 253, 254-255, 113 N.Y.S.2d 436; Lasky v. Economy Grocery Stores, 319 Mass. 224, 65 N.E.2d 305; Groomes v. United States, 155 A.2d 73 That the owner has consented to that possession does not, however, preclude a conviction for larceny. If the customer exercises dominion and control wholly inconsistent with the continued rights of the owner, and the other elements of the crime are present, a larceny has occurred. ⁶...