People v. Pagan, 93 N.Y.2d 514 (1999)

The determination of ‘immediacy’ between a larceny and the use of force, which elevates the crime to robbery, is a factual question for the jury, even if there’s a time gap between the taking and the threat.

Summary

Pagan was convicted of robbery, grand larceny, and other offenses for acting as a lookout while his accomplice stole from a sleeping man on the subway. The victim awoke and demanded his property back, at which point the accomplice threatened him. The critical issue was whether the threat occurred immediately after the taking, as required for robbery. The Court of Appeals held that ‘immediacy’ is a question of fact for the jury, and the jury could reasonably conclude that the threat was immediate, even if there were some discrepancies in witness testimonies regarding the exact timing.

Facts

Gavilanes was sleeping on a subway car. Postigo stole Gavilanes’s property while Pagan acted as a lookout. Gavilanes woke up and approached Postigo to demand the return of his property. Pagan warned Postigo of Gavilanes’s approach. Postigo threatened Gavilanes with physical force to retain the stolen property. Pagan and Postigo were arrested. The arresting officer, Darge, testified at trial, as did Gavilanes.

Procedural History

Pagan was convicted in the trial court of robbery in the second degree, grand larceny in the fourth degree, and several lesser offenses. Pagan appealed, arguing that the evidence was insufficient to prove that the threat occurred immediately after the taking, a necessary element for robbery. The Appellate Division affirmed the conviction. Pagan appealed to the New York Court of Appeals.

Issue(s)

Whether the prosecution presented sufficient evidence that Postigo threatened Gavilanes immediately after the taking of his property, thereby satisfying the ‘immediacy’ element required to elevate the crime from larceny to robbery under Penal Law § 160.00(1).

Holding

Yes, because the question of immediacy in this case is an issue of fact for the jury. A jury could reasonably conclude from the evidence presented that the threat of force occurred immediately after the larceny.

Court’s Reasoning

The Court of Appeals emphasized that ‘immediacy’ is a factual question for the jury to decide, similar to determining whether the defendant threatened the “immediate use of physical force” or whether a homicide occurred in “immediate flight” from a felony. The Court noted that in determining the legal sufficiency of evidence, all reasonable inferences must be drawn in the People’s favor, and a jury can accept some and reject other pieces of evidence. Here, the jury could reasonably conclude from Gavilanes’s testimony that Postigo used the threat of force to retain the stolen property, and from Darge’s testimony that the confrontation occurred within minutes of the larceny and in Pagan’s presence. The Court further stated, “Even if the gap between the taking and the threat were longer, as defendant insists, the question whether one immediately succeeded the other would remain an issue of fact, and it cannot be said here, as a matter of law, that the threat was not immediately made.” The court found no merit to the claim of ineffective assistance of counsel.