People v. Richette
| Decision Date | 17 October 1973 |
| Citation | 303 N.E.2d 857,33 N.Y.2d 42,349 N.Y.S.2d 65 |
| Parties | , 303 N.E.2d 857 The PEOPLE of the State of New York, Respondent, v. Louis RICHETTE, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
Myron D. Cohen and William E. Hellerstein, New York City, for appellant.
Michael F. Armstrong, Dist. Atty. (Martin L. Bracken, Kew Gardens, of counsel), for respondent.
The defendant was indicted for, and convicted of, the crime of grand larceny in the second degree in connection with a robbery perpetrated against the employees of Posner Laboratories, Inc., a manufacturer and distributor of human wigs in Corona, Queens. The Appellate Division, 38 A.D.2d 954, 331 N.Y.S.2d 364, affirmed his conviction by a divided vote, and the appeal is before this court by permission of one of the dissenting justices. The principal question posed is whether the trial judge erred in refusing the defendant's request to instruct the jurors that they might find him guilty of the crime of attempted larceny.
The People's case upon the trial was based chiefly upon the testimony of Herbert Schrager, controller of the victimized corporation and that of the arresting officer Nicholas Guerrier. The testimony adduced established that two armed men entered the Posner Laboratories office at about 5:30 P.M. on February 8, 1968, and tied up Mr. Schrager and three other employees. One of the robbers remained with the victims while the other went into the warehouse area where the workers had left for the day.
At about 6:00 P.M., Patrolman Guerrier, responding to an 'alarm' alert, went to the warehouse. There he saw a panel truck backed into the freight entrance of the warehouse with the overhead door part way down. Inside, at the rear of the truck, he found the defendant with a carton in his hand loading the truck. Asked what he was doing, the defendant answered that he was 'hired' to drive the truck and placed the carton on the truck's bumper board. About 35 or 40 cartons were already stacked in the truck.
Officer Guerrier took the defendant with him to the office where the victims were still tied up. After they had been released he returned to the warehouse area with the defendant and Schrager; wigs and hair treatment merchandise were scattered all over the floor. The truck, Schrager said, did not belong to the company and he had never before seen the defendant. He estimated the value of the wigs in the truck to be between $6,000 and $8,000. The patrolman took as evidence the carton he had seen in the defendant's hand which contained 'wiglets' having a value of about $500.
Arrested and advised of his rights, the defendant stated, Asked about the others who were with him, he replied, A few days later, Guerrier testified, he met the defendant in the hall of the courthouse, and the defendant asked him,
The defendant, who did not take the stand, unsuccessfully sought dismissal of the indictment on the ground that the evidence was insufficient to establish guilt. Then, after the trial judge had charged the jury with respect to grand larceny in both the second and third degrees, he requested instructions on petit larceny and an attempt to commit the crime of larceny. Both requests were denied, and the jury found the defendant guilty of second degree grand larceny, the sole crime charged in the indictment.
Although the defendant argues otherwise, the proof amply established his guilt beyond a reasonable doubt of that offense. Nor is there any substance to his complaint with respect to the court's refusal to instruct the jury on petit larceny. It was, at most, harmless error. Had the jury found the defendant guilty of grand larceny in its third degree, there might be some basis for his claim that he was prejudiced by the court's refusal to charge petit larceny: it could be asserted that, had the instruction been given, the jury might have returned a verdict of guilt of petit larceny, the still lower degree of larceny. However--to paraphrase what this court wrote in People v. Brown, 203 N.Y. 44, 51--52, 96 N.E. 367, 369--370--such speculations are dispelled by the fact that the defendant was actually found guilty of second degree larceny; when the jury excluded from the case the alternative of grand larceny in the third degree, 'all lower degrees were necessarily eliminated'. (See, also, People v. Granger, 107 N.Y. 67, 73, 79 N.E. 833, cf. People v. Reisman, 29 N.Y.2d 278, 287--288, 327 N.Y.S.2d 342, 349, 277 N.E.2d 396, 401.)
We turn, then, to a consideration of the defendant's claim that the court's refusal to charge the crime of attempted larceny constituted reversible error. It should be noted, initially, that he argues upon this appeal, not that a theft had not been consummated at the time he was apprehended but, rather, that conviction of an attempt is no longer 'precluded', even though 'it appears that the attempted crime has been consummated.' Consequently, his argument continues, 'the jury must be given a charge on attempt in every case, irrespective of the nature of the evidence presented at the trial.'
In support of this contention, he relies upon a change in the definition of 'attempt' in the new Penal Law (§ 110.00) which, unlike the old provision (former Penal Law, § 2), no longer requires a failure to effect the commission of a crime. 1 Thus, he quotes Professor--now Judge--Denzer's observation in his Practice Commentary accompanying the current statute (McKinney's Cons. Laws of N.Y., Book 39, Penal Law, Vol. 1, p. 180):
'By omitting the words, 'but failing,' the new attempt section prescribes a general rule that conviction for attempt is not precluded by the fact that the crime attempted was consummated.'
It would be most unreasonable to conclude from this that, in every case in which the evidence admits of no decision except that the crime charged has actually been consummated, a trial judge is required, nevertheless, to instruct the jury that it might find the defendant guilty of an attempt to commit that crime. Nor does the statement quoted compel any such result. Sensibly read, it can only mean that a jury May find an attempt to commit a crime where, although there is evidence of a consummation, the proof is also susceptible of a finding of an attempt. In other words, the new statute simply gives a judge somewhat more discretion in granting or refusing a charge on...
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