People v. Fata

184 A.D.2d 206, 586 N.Y.S.2d 780, 1992 N.Y. App. Div. LEXIS 7586

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 2, 1992
• Status: Published

Opinions

Judgment, Supreme Court, New York County (Richard B. Lowe, III, J.), rendered October 23, 1989, convicting defendant, after a jury trial, of robbery in the first degree and sentencing her to an indeterminate term of imprisonment of from five to fifteen years, unanimously reversed, on the law, and the matter remanded for a new trial.

The facts are accurately stated in the concurring memorandum of Justice Milonas. We agree with him that there should be a reversal, but only on the ground that the court erred in constructively amending the indictment by permitting the jury to consider the champagne bottle a dangerous instrument. To that extent, we concur in Justice Milonas’ concurrence.

In our view, the court’s response to the jury’s question whether intent must precede force does not constitute error. Immediately before responding to this question with an expanded definition of intent, the court instructed the jury, inter alia, that a person steals property "when with intent to deprive another of property she wrongfully takes such property from an owner,” that "a person acts with intent to deprive another of property when her conscious aim or objective is to deprive another of the property” and that a "person forcibly steals property in the course of committing a larceny when she uses or threatens the immediate use of physical force upon another person for the purpose of preventing or overcoming resistance to the taking * * * or * * * retention” of the property. These supplemental instructions precisely addressed the jury’s concern and were thus sufficient to inform the jury that an intent to steal must accompany the use of force.

We disagree with the conclusion that the jury demonstrated "continuing bewilderment” by its request for a written instruction. First of all, the jury did not ask for a written description of the intentional use of force but for a "written description of the elements or * * * [a] re-read[ing of] element four of [robbery in] the First, Second and Third Degree”, i.e., that defendant forcibly stole the property. Nor does the jury’s request show that it continued to be "bewildered” as to whether intent must precede force. If that were the jury’s concern, there is every reason to believe that it would have specifically asked for clarification as to this precise point—the jury having already demonstrated its ability to do so. The fact that the jury asked only for a re-reading of one of the elements shows that it was no longer troubled by the question whether intent must precede force.

In any event, there must be, as indicated, a new trial because of the improper constructive amendment of the indictment. Concur—Sullivan, J. P., Kupferman, Kassal and Smith, JJ.