New York Law Review

Tag: asportation

  • People v. Olivo, 34 N.Y.2d 426 (1974): Larceny Requires Dominion and Control, Not Necessarily Asportation

    People v. Olivo, 34 N.Y.2d 426 (1974)

    Larceny is complete when a person exercises dominion and control over another’s property with the intent to steal it, even if the property is not moved from its original location.

    Summary

    The New York Court of Appeals held that a defendant could be convicted of larceny for starting a car with the intent to steal it, even if the car was not actually moved. The Court reasoned that starting the car demonstrated sufficient dominion and control over the vehicle to constitute a “taking” under the state’s larceny statute. The decision emphasized that modern larceny statutes focus on the exercise of control, not merely the physical movement (asportation) of the property. The Court considered the broad language of New York’s Penal Law, which prohibits the wrongful taking, obtaining, or withholding of property.

    Facts

    Police officers observed the defendant in a parked car, with the headlights on and the engine running. The wheels were turned as if the car was about to move. The defendant could not produce a valid registration for the vehicle, and it was later determined that the car belonged to someone else. The car’s vent window had been forced, and the ignition switch had been tampered with. The defendant was found with burglary tools and a hypodermic needle inside the car.

    Procedural History

    The defendant was charged with grand larceny in the second degree (later reduced to third degree) and criminal possession of burglary tools and a hypodermic instrument. He was convicted on all charges in a jury trial. The Appellate Division affirmed the convictions. The case then went to the New York Court of Appeals.

    Issue(s)

    Whether a completed larceny occurs when a person starts a car with the intent to steal it, but does not move the vehicle.

    Holding

    Yes, because exercising dominion and control over an automobile by starting it with the intent to steal constitutes a completed larceny under New York law, even if the vehicle is not moved.

    Court’s Reasoning

    The Court reasoned that asportation, or the carrying away of goods, is not always a necessary element of larceny. The Court referenced Harrison v. People, 50 N.Y. 518, which held that even a slight movement of a stolen wallet was sufficient to constitute larceny. The Court emphasized the importance of possession and control, stating that “possession, so far as this offense is concerned, is the having or holding or detention of property in one’s power or command.”

    The Court distinguished the case from situations involving inert objects like wallets, arguing that an automobile is an instrument of transportation and that starting the engine signifies complete control. The Court drew an analogy to drunk driving cases, where operation of a vehicle is established when a person is behind the wheel with the engine running, regardless of whether the car is moving.

    The Court emphasized that the state’s larceny statute broadly prohibits the wrongful taking, obtaining, or withholding of another’s property. It noted that the definition of “obtain” includes “the bringing about of a transfer or purported transfer of property… whether to the obtainer or another.” The Court concluded that a person transfers an instrument of transportation to himself when he commences to operate it for its intended purpose, thus exercising dominion and control over the property. “To require that the vehicle be moved by the operator is to slavishly adhere to the auxiliary common-law element of asportation which is simply not necessary to the finding of the primary elements of dominion and control where an activated automobile is concerned.”

  • People v. Miles, 23 N.Y.2d 527 (1969): Kidnapping and the Levy-Lombardi Rule

    People v. Miles, 23 N.Y.2d 527 (1969)

    The Levy-Lombardi rule, which prevents elevating lesser crimes into kidnapping, does not apply when the kidnapping is a distinct crime, even if it facilitates another crime like murder.

    Summary

    Defendants were convicted of kidnapping Charles Brooks after attempting to murder him in New Jersey and transporting him to New York in a car trunk. The New York Court of Appeals affirmed the convictions, holding that the kidnapping was a separate crime from the attempted murder and not merely incidental to it under the Levy-Lombardi rule. The court also addressed the admissibility of post-indictment statements made by some defendants to law enforcement, finding that while some statements were improperly obtained, the error was harmless due to the overwhelming evidence of guilt.

    Facts

    Charles “Cherokee” Brooks was lured to a house in New Jersey by defendant Sandra Hall, where he was attacked and injected with a lye solution by the other defendants. Believing him to be dead, the defendants rolled Brooks in a blanket, carried him to a car, and placed him in the trunk. They then drove from New Jersey to New York, intending to dispose of his body. Police officers stopped the car in New York City and discovered Brooks alive in the trunk, bound and injured, along with weapons in the car. Brooks testified that he was kidnapped and transported against his will, while the defendants claimed he voluntarily entered the trunk to hide from pursuers.

    Procedural History

    The defendants were charged with kidnapping and illegal possession of weapons. Following a jury trial, all four defendants were convicted. They appealed, arguing that the kidnapping verdict was against the weight of the evidence, that they believed Brooks was dead, and that the kidnapping was incidental to the attempted murder. The Appellate Division affirmed the convictions, and the New York Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the evidence was sufficient to prove kidnapping, given the defendants’ claim that they believed the victim was dead.
    2. Whether the kidnapping was merely incidental to the attempted murder under the Levy-Lombardi rule, thus precluding a separate kidnapping charge.
    3. Whether the admission of post-indictment statements obtained from the defendants in the absence of counsel constituted reversible error.

    Holding

    1. Yes, because the jury could reasonably infer from the evidence that the defendants either believed Brooks was alive or were not convinced he was dead, and therefore intended to kidnap him.
    2. No, because the kidnapping involved a complicated asportation with changes in purpose and direction, first in New Jersey and then to New York, for purposes connected with but not directly instrumental to the attempted murder.
    3. Yes, as to defendant Howard, because the statements were improperly obtained in the absence of counsel and used to impeach his credibility on cross-examination regarding details not covered in his direct testimony; however, the error was harmless.

    Court’s Reasoning

    The Court reasoned that the jury was entitled to infer from the evidence that the defendants did not absolutely believe Brooks was dead, pointing to the act of retying his hands. The court distinguished this case from People v. Levy and People v. Lombardi, explaining that those cases involved brief asportations that were integral to the commission of another crime, such as robbery or rape. Here, the kidnapping was a separate act with its own distinct purpose. The court stated, “[T]he Levy-Lombardi rule was designed to prevent gross distortion of lesser crimes into a much more serious crime by excess of prosecutorial zeal. It was not designed to merge ‘true’ kidnappings into other crimes merely because the kidnappings were used to accomplish ultimate crimes of lesser or equal or greater gravity.” The court found that the admission of Howard’s post-indictment statement was improper under People v. Arthur because it was obtained without a waiver of counsel in the presence of his attorney. However, the court deemed the error harmless because the inconsistencies related only to preliminary events and the evidence of guilt was overwhelming. The court emphasized the importance of preventing the elevation of minor crimes to kidnapping charges, while also acknowledging that true kidnappings should be recognized as independent offenses even when connected to other crimes like murder or extortion. The Court quoted old Penal Law § 1250, subd. 3, defining kidnapping, but noted the new Penal Law provided entirely new defintion and classification of the crime.