T., In re

• Decision Date: 14 March 1974
• Citation: 353 N.Y.S.2d 204,44 A.D.2d 524
• Parties: In re Linda T., a person alleged to be a juvenile delinquent, Appellant, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 204

353 N.Y.S.2d 204

44 A.D.2d 524

In re Linda T., a person alleged to be a juvenile

delinquent, Appellant, Respondent.

Supreme Court, Appellate Division, First Department.

March 14, 1974.

M. Gage, Brooklyn, for appellant.

M. D. Lefkowitz, Brooklyn, for respondent.

Before NUNEZ, J.P., and KUPFERMAN, MURPHY, TILZER and LANE, JJ.

PER CURIAM.

Order, Family Court of the State of New York, Bronx County, entered April 3, 1973 adjudging appellant a juvenile delinquent on the ground that appellant committed acts which if done by an adult would constitute the crimes of petit larceny and possession of stolen property and placing appellant on probation for a period of one year, is modified, on the law, to delete the finding of guilt as to petit larceny and, as so modified, the order is affirmed, without costs and without disbursements.

Contrary to the conclusion reached by the dissent that the evidence at best only established appellant's 'mere presence at the scene of the crime or crimes', we believe that the evidence established beyond any reasonable doubt that appellant jointly participated with her companions in the criminal acts charged. The appellant entered the offices of the Community Center together with her two male companions and then she requested that the Director hang up the windbreaker in the closet in which the television set was kept. Subsequently, appellant went to the closet, first by herself, and upon leaving, she and her remaining companion went to the closet ostensibly for the sole purpose of retrieving the windbreaker. During the short period of time involved (approximately 20 minutes), appellant and one of the male companions were the only persons who had occasion to go to the closet. And, it was established that the television set was in the closet when the three first arrived and was immediately discovered missing upon their departure. Thereafter, appellant and her companions proceeded to Mrs. Zalaaznick's apartment where the recently acquired property was converted into cash. The fact that appellant did not participate in the verbal exchange does not negate the otherwise fair inferences which may be drawn from the evidence. The totality of the circumstances, including the manner in which the television set was taken, the nature of the property, its immediate sale by the same three persons who were previously together in the Community Center, as well as appellant's involvement in each and every part of the transaction, points to the logical conclusion that appellant was a participant in the larceny and possession of the television set and such evidence 'excludes, to a moral certainty' the hypothesis that appellant was but an innocent bystander to the criminal acts. (People v. Harris, 306 N.Y. 345, 351, 118 N.E.2d 470, 472.) And, we note that even if it could be said that the proof was insufficient to establish appellant's participation as a principal, there was sufficient evidence to establish that she knowingly aided and abetted in the commission of the criminal acts and accordingly, may be found guilty of the substantive crimes (Penal Law § 20.00). Cf. People v. Elfe, 37 A.D.2d 208, 323 N.Y.S.2d 114. However, since 'a person may not be convicted of both larceny and criminal possession of stolen property with respect to the same property' (Penal Law § 165.60 sub. (2)), the finding of guilt as to the charge of petit larceny should be vacated (see People v. Moro, 23 N.Y.2d 496, 500, 297 N.Y.S.2d 578, 581, 245 N.E.2d 226, 228; People v. Ortiz, 42 A.D.2d 931, 347 N.Y.S.2d 713; People v. Carrero, 42 A.D.2d 575, 344 N.Y.S.2d 198).

All concur except MURPHY, J., who dissents in the following memorandum:

I would go further and reverse the adjudication of delinquency in its entirety. Viewing the petitioner's evidence in its most favorable light the evidence adduced below established that Linda and two male companions entered the James Monroe Community Center to see a friend; the friend was out to lunch and they were invited to await the friend's return in the Director's 12 15 office; that the Director opened a locked 3 4 closet to hang up a windbreaker belonging to Linda or one of her companions; that Linda went to the closet (which was permitted to thereafter remain unlocked) once for cigarettes; that one of Linda's male companions left after about...