Issue before the Court: Whether the prosecution presented the grand jury with legally sufficient proof of attempted grand larceny in the third and fourth degrees. 

 

Factual Background: The police put two money orders with a combined value of over $3,000 into a mail collection box they were monitoring for theft. Deleon was apprehended before pulling out a “fishing device”–a sticky water bottle designed to adhere to envelopes–from the box. He admitted that he was being paid $100 per fished mailbox. No evidence was presented to the grand jury that the bottle adhered to either of the money orders. Deleon was subsequently charged with attempted grand larceny in the third and fourth degrees. The trial court dismissed the third degree count and reduced the fourth degree count to attempted petit larceny on the ground that the prosecution failed to prove intent with regard to the property value elements of each offense. The prosecution appealed. 

 

On appeal, the First Department reversed and remanded. Citing People v. Miller, 87 N.Y.2d 211 (1995), the court held that the property value elements at hand were “strict liability aggravating factors” to which an intent requirement does not attach, irrespective of whether an attempt or completed offense is charged.

 

Held: In a unanimous memorandum opinion, the court held that the prosecution presented insufficient evidence that Deleon came “dangerously close” to taking property valued in excess of $3,000 and $1,000. There was no evidence that the items attached to the fishing device had any monetary value, no evidence of the quantity of mail in the box, and no evidence that it was physically possible for Deleon to retrieve the two money orders amidst the other mail. 

 

CAL Observes: Although the court made the right call as to the deficiencies in the prosecution’s proof, it evaded the crux of the First Department’s decision, which centered on the elements to which intent may attach, specifically in the context of an attempted crime. Perhaps this sidestep indicates discomfort with (but an unwillingness to confront) Miller’s overgrowth. As Judge Simons argued in his Miller dissent, where a person does not intend a specific result, he cannot attempt it.  In any case, this decision seems to inject life back into the meaning of “prima facie case”and “dangerously close,” even in the face of the “light most favorable to the prosecution” standard.