Factual background: Defendant was observed on a department store videotape taking earrings from display racks, removing the backs, and placing the earrings in a pile of clothes she was holding in her arms.  When confronted by security guards in the parking lot, she became extremely aggressive, swiping at one with a pen and injuring another with her car as she drove away.  When she was ultimately arrested, none of the property was found, either on her or in the vicinity. 

 

Issue: Did the Appellate Division correctly reduce the robbery counts to petit larceny on the theory that the evidence was insufficient because no stolen property was found in the defendant’s possession, so the jury could not infer that she threatened or used force to prevent or overcome resistance to its taking or retention.

 

Held: Reversed.  In a majority opinion authored by Judge Rivera, the Court held that the question of the defendant’s intent is ultimately a jury question and the issue should not be removed from its province simply because the property is not recovered.  “Where sufficient facts and reasonable inferences support a finding of intent to forcibly steal, even where the stolen property is not recovered from the defendant, a jury should be permitted to make such a finding.”  The majority found her unusually violent and threatening reaction to the security guards to provide particular non-speculative evidence supporting the sufficiency of the evidence of intent. 

 

CAL Observes: If the defendant had not acted so violently in the parking lot, one wonders whether the issue might have been decided differently.  The defendant’s resistance appeared itself to provide the requisite “proof” of intent. Interesting line-up in dissent: Judges Lippman and Abdus-Salaam.