People v. Dekle

83 A.D.2d 522, 441 N.Y.S.2d 261, 1981 N.Y. App. Div. LEXIS 14809

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 16, 1981
• Status: Published

Opinions

Judgment, Supreme Court, New York County (Levittan, J., and a jury), rendered December 17,1979, convicting defendant after a jury trial of robbery in the third degree and petit larceny, and sentencing him as a second felony offender to an indeterminate term of imprisonment of from 2Vz to 5 years for the robbery and concurrent determinate term of one year for petit larceny, affirmed. The facts are fairly stated in the dissent. The issue is whether the theft was a larceny or a robbery, which turns on whether the threat of “the immediate use of physical force *** for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof” occurred “immediately after the taking” (Penal Law, § 160.00, subd 1). The dissent concludes as a matter of law that (1) the larceny had come to an end when the defendant removed the radio from the showcase and removed the price tag in the store, or at the latest when defendant left the store without paying for the item; and (2) when the defendant threatened the security guards with a knife on the street outside of Gimbel’s, the force used was no longer “immediately after the taking” but was during immediate flight from a completéd larceny and hence could not raise the larceny to the level of a robbery. The dissent makes the larceny an isolated event, terminating in the store or on the threshold to the street, as a matter of law. However, the question is one of fact for the jury, depending on the circumstances (People v Olivo, 52 NY2d 309). The jury was entitled to find that defendant’s taking of the property was a continuous act, including removal of the item from the showcase, the removal of its price tags in the adjacent department and its removal from the store, and that defendant’s threat to use the knife was a threat of “the immediate use of physical force” so shortly after the taking as to constitute the use of physical force “immediately after the taking” to overcome the victim’s resistance to the defendant’s retention of the property (People v Guzman, 68 AD2d 58). If so, there was a robbery. The questions are ones of fact for the jury upon a proper charge as to the meaning of the word “immediately” in the statute. The charge was correct and there was neither objection nor request for amplification or for a different charge. Concur — Kupferman, J. P., Sullivan, Carro and Fein, JJ.