People v. Washington
| Decision Date | 17 November 1988 |
| Citation | 141 Misc.2d 895,535 N.Y.S.2d 327 |
| Parties | The PEOPLE of the State of New York v. Ryan WASHINGTON. |
| Court | New York Supreme Court |
Elizabeth Holtzman, Dist. Atty. (Ann Guttman, Asst. Dist. Atty., of counsel), for the People.
Trilby De Young, Legal Aid Soc., for defendant.
Does the withholding of the promised drugs or refusal to return currency, during a face to face drug buy, constitute a "taking from the person" pursuant to PL § 155.30(5)?
Defendant Ryan Washington was indicted for robbery in the second degree and grand larceny in the fourth degree. After a jury trial defendant was acquitted of the robbery charge but convicted of grand larceny in the fourth degree [PL § 155.30(5) ]. 1
Complainant, at a known drug location, initiated a drug transaction with the defendant. The complainant gave the defendant $20.00, anticipating an exchange of drugs as in previous purchases from the defendant. However, after accepting the currency, defendant placed his hand inside the breast pocket of his jacket seemingly reaching for a weapon, said "You've been taxed", keeping the currency without an exchange and instructed the complainant to get off the block.
Taking the evidence in the light most favorable to the people, the jury found an intent to immediately exchange currency for drugs and thus the transfer of funds was not an absolute transfer of possession but at best a temporary transfer of custody.
The requisite legislative intent necessary for a larceny has not changed significantly in over one hundred years (People v. Karp, 298 N.Y. 213, 81 N.E.2d 817 (1948)). The New York Penal Law of 1882 § 528(1) defined "taking" in reference to larceny as "... secretes, withholds, or appropriates to his own use, or that of any person other than the true owner, any money, personal property ... or article of value of any kind." (Emphasis added.) A trespassory taking thus included withholding.
"Prior to 1942, larceny was defined * * * in terms of the common law forms of theft: larceny by trespassory taking, larceny by trick, embezzlement and false pretenses." 2 (39 McKinney's § 155.05 Practice Commentaries by Arnold D. Hechtman).
These common law forms were merged to form a simplified definition of larceny in the 1942 revision and considerably expand the scope of the offense. The Act of 1862, had elevated the status to grand larceny by a "taking from the person" regardless of the value of the property or the time of day at which the incident occurred because of the risk of physical harm to the victim when the taker is in such close proximity (Wilson v. People, 39 N.Y. 459, 462 (1868) citing Laws 1862 Ch. 374(2)).
The defense contends that the facts establish a "giving" as opposed to a "taking"; a case of petit larceny by false pretenses as opposed to grand larceny "from the person". The People maintain it was a common law trespassory taking elevated by a "taking from the person" to grand larceny.
When the owner of property delivers property to another for a specific purpose, if the property is not utilized for that purpose, the title rests with the owner and the possessor has mere custody of the property (Cary v. Hotailing, 1 Hills' Report 311 (1841); Ross v. People, 5 Hills Report 294 (1843); Whitmore v. Wisconsin, 238 Wis 79, 298 N.W. 194 (1941) 134 A.L.R. 872.
"It is stated that if a watchmaker steals a watch delivered to him to clean, or if a person steals clothes delivered for the purpose of being washed, or guineas delivered for the purpose of being changed into half guineas, or a watch delivered for the purpose of being pawned, the goods have been thought to remain in the possession of the proprietor, and the taking them away held to be a felony". (Smith v. People, 53 N.Y. 111, 113-114 (1873).
In the instant case, the defendant had mere possession of the currency and if a jury finds, as they did, that the defendant took the money cum animo furandi, then the wrongful withholding of the property constitutes a taking (Wilson at 461, People v. Call, 1 Denio's Report 120, People v. Stofer, 3 Cal.App. Reports 416, 86 P. 734 (1906).
A taking 3 from the person can only occur in a trespassory taking because only in such a taking is there a risk of danger where the victim perceives the event as a larceny. It could not occur where the larceny arises out of a trick or false promise where the victim, at the time of the incident, is unaware of the perpetrator's intent. This risk of danger, the court holds, is equally applicable to a withholding or other trespassory taking where there is a close proximity by the defendant.
This court holds that the word "taking" is a New York trespassory taking and finds defendant's arguments suggesting a literal definition not in accord with the legislative history. In our case, currency was tendered for the specific purpose of consummating a drug deal; defendant accepted the currency but refused to deliver the drugs.
Defendant further contends that the fact pattern constitutes larceny by false...
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People v. Washington
...J.), rendered June 8, 1988, convicting him of grand larceny in the fourth degree, upon a jury verdict, and imposing sentence. 141 Misc.2d 895, 535 N.Y.S.2d 327. ORDERED that the judgment is modified, on the law, by reducing the conviction of grand larceny in the fourth degree to petit larce......