New York Law Review

Tag: Possession

  • People v. Pena, 50 N.Y.2d 400 (1980): Establishing Possession of a Dangerous Instrument in Robbery Cases

    50 N.Y.2d 400 (1980)

    In New York, a defendant’s admission of possessing a weapon during a robbery, coupled with a threat to use it, can constitute legally sufficient evidence of actual possession to support a charge of first-degree robbery, although the weapon is not explicitly displayed or recovered.

    Summary

    This case addresses whether a defendant’s verbal claim of possessing a gun during a bank robbery, combined with a threat to use it, provides sufficient evidence of actual possession to sustain a charge of first-degree robbery under New York Penal Law § 160.15(3). The Court of Appeals held that such a statement, without additional corroborating evidence like the display or recovery of a weapon, is insufficient to prove actual possession. The dissent argued that the defendant’s admission should be considered direct evidence of possession.

    Facts

    The defendant handed a bank teller a note stating, “I have A Gun Fill bag, Dont say anything, or I’ll shoot.” The defendant was not apprehended at the scene. He was arrested months later. No weapon was recovered in connection with the defendant.

    Procedural History

    The case originated with an indictment for first-degree robbery. The defendant challenged the legal sufficiency of the evidence presented to the grand jury. The lower court dismissed the first-degree robbery charge. The People appealed to the New York Court of Appeals.

    Issue(s)

    Whether a defendant’s statement during a robbery, claiming possession of a gun and threatening its use, is legally sufficient evidence of actual possession of a dangerous instrument to support a charge of first-degree robbery under Penal Law § 160.15(3), even without the weapon’s display or recovery.

    Holding

    No, because a defendant’s statement alone, without corroborating evidence, is insufficient to establish actual possession of a dangerous instrument for the purposes of first-degree robbery.

    Court’s Reasoning

    The Court reasoned that while admissions are generally competent evidence, the specific requirement of “actual possession” under Penal Law § 160.15(3) necessitates more than a mere verbal claim. The Court distinguished this case from situations where the weapon is displayed or recovered, providing tangible evidence of its existence and the defendant’s control over it. The Court emphasized the importance of preventing convictions based solely on unsubstantiated claims, especially when a significant period has passed, allowing the defendant ample opportunity to dispose of the alleged weapon. The dissent argued that the defendant’s admission should be treated as direct proof of possession, consistent with established evidentiary principles. The dissent also pointed out the practical implication of the ruling which essentially rewards those who conceal their weapons and avoid immediate apprehension, as they can only be charged with a lesser offense. The dissent stated, “Admissions by a party of any fact material to the issue are always competent evidence against him, wherever, whenever, or to whomsoever made” (People v Chico, 90 NY2d 585, 589 [1997]).

  • People v. McKune, 12 N.Y.3d 925 (2009): Consecutive Sentencing for Child Pornography Possession Requires Proof of Separate Acts

    People v. McKune, 12 N.Y.3d 925 (2009)

    Consecutive sentences for multiple counts of possessing a sexual performance by a child are illegal if the prosecution fails to demonstrate that the defendant’s acts of possession were separate and distinct, supported by specific facts regarding the time and date of each instance.

    Summary

    Defendant McKune pleaded guilty to three counts of possessing a sexual performance by a child. The trial court sentenced him to three consecutive terms of 1 to 3 years. The New York Court of Appeals modified the Appellate Division’s order, directing that the defendant’s sentences run concurrently, finding that the prosecution failed to present sufficient facts to prove that each act of possession occurred at a separate time. Without such evidence, the imposition of consecutive sentences was deemed unlawful. The Court emphasized that the indictment lacked specific dates and times for each alleged act of downloading the images, and the plea allocution did not provide these details, thus depriving the court of the authority to impose consecutive sentences.

    Facts

    Defendant was indicted on August 10, 2004, on seven counts, including unlawful surveillance, endangering the welfare of a child, and multiple counts of possessing and promoting a sexual performance by a child. These charges stemmed from videotapes and digital photographs found in his possession, depicting his and a neighbor’s children, as well as sexual conduct involving children. A subsequent indictment added seven more counts of possessing a sexual performance by a child. The indictments generally stated that the acts occurred “during the month of July, 2004,” without specific dates or times for each image.

    Procedural History

    The defendant was charged in two separate indictments. He pleaded guilty to three counts of possessing a sexual performance by a child from the first indictment. The trial court sentenced him to three consecutive terms of 1 to 3 years. The Appellate Division affirmed. The New York Court of Appeals modified the order, directing that the sentences run concurrently, and affirmed as modified.

    Issue(s)

    Whether the trial court legally imposed consecutive sentences for three counts of possessing a sexual performance by a child when the prosecution did not present facts demonstrating that the defendant took possession of each digital image at a separate and distinct time.

    Holding

    No, because the People did not include the date and time of each of the allegedly separate acts of downloading the digital images set forth in the indictment, or include such facts in defendant’s plea allocution, the court was without authority to impose consecutive sentences.

    Court’s Reasoning

    The Court of Appeals relied on established precedent, particularly People v. Ramirez, which states that consecutive sentences are permissible only when “the facts demonstrate that the defendant’s acts underlying the crimes are separate and distinct.” The court also cited People v. Laureano, emphasizing that the prosecution may rely on the allegations of the indictment and facts adduced at the allocution to ascertain the existence of such facts. In this case, the indictment lacked specific dates and times for each alleged act of possession, and the plea allocution did not provide these details. Therefore, the court reasoned that the trial court lacked the necessary factual basis to determine that the defendant’s possession of each image constituted a separate and distinct act. The Court emphasized that without such evidence, the imposition of consecutive sentences was unlawful under Penal Law § 70.25. The decision highlights the prosecution’s burden to establish the separateness of criminal acts when seeking consecutive sentences. The court implicitly underscored the importance of specificity in indictments and plea allocutions, especially when the severity of sentencing hinges on the distinctness of the underlying conduct. There were no dissenting or concurring opinions noted.

  • People v. Zinke, 89 N.Y.2d 243 (1996): Defining ‘Owner’ in Robbery and Larceny Cases

    People v. Zinke, 89 N.Y.2d 243 (1996)

    In robbery and larceny cases, the term “owner” refers to someone with a possessory right to the property superior to that of the taker, but does not automatically extend to anyone who attempts to prevent a theft without having a pre-existing claim or custodial duty regarding the property.

    Summary

    Zinke was convicted of robbery and petit larceny for forcibly stealing boots from a mall security guard (Davis), who the indictment identified as the “owner.” The boots were stolen from a store unaffiliated with the mall. The New York Court of Appeals reversed the robbery and petit larceny convictions, holding that Davis was not the “owner” of the boots because he did not have a possessory right superior to Zinke’s. The Court emphasized that merely attempting to stop a theft does not automatically create ownership rights in the stolen property.

    Facts

    Zinke and an accomplice stole a carton of Timberland boots from Mr. Lee’s Men’s Shop. They carried the boots into the nearby Gertz Mall. Frank Davis, a mall security guard, saw Zinke and his accomplice with the box of boots and stopped them. Zinke claimed the box was theirs but couldn’t produce a receipt. Zinke and his accomplice started transferring the boots to a bag. Davis radioed for assistance and tried to stop them from leaving. Zinke displayed a box cutter and threatened Davis. Zinke and his accomplice ran from the mall but were later apprehended by police officers.

    Procedural History

    Zinke was charged with first-degree robbery, petit larceny, and menacing. At trial, Zinke moved to dismiss the robbery and larceny charges, arguing that Davis was not the owner of the boots. The trial court denied the motion, and Zinke was convicted. The Appellate Division reversed the robbery and petit larceny convictions, finding that the People failed to prove that Davis had a right of possession superior to Zinke’s. The People appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether a mall security guard who attempts to stop a suspected theft of property from a store unaffiliated with the mall qualifies as an “owner” of the property for purposes of robbery and larceny statutes, based solely on his attempt to prevent the theft.

    Holding

    1. No, because the security guard did not have a possessory right to the boots superior to that of the defendant.

    Court’s Reasoning

    The Court of Appeals held that robbery and larceny require a taking of property “from an owner thereof,” and ownership includes anyone with a right to possession superior to that of the taker. However, the Court rejected the trial court’s reasoning that a thief’s lack of ownership automatically makes anyone who tries to stop them an owner. The Court distinguished the case from prior holdings, noting that here, no special relationship or prior possessory interest existed between the security guard and the stolen boots. The guard’s actions, without more, did not create a superior right of possession. Relying on Foulke v. New York Consol. R. R. Co., the People argued that Davis was a gratuitous bailee, but the Court stated that the passenger/common carrier relationship was crucial to the creation of the bailment. In the present case, there was no relationship between the true owner and the security guard that could have given rise to a duty on the guard’s behalf to become a bailee of the property. The court further reasoned that “[l]abeling the security guard an owner would expand the crime of robbery beyond the definitional limits imposed by the common law and the Legislature.”

  • People v. Moro, 23 N.Y.2d 496 (1969): Inference of Guilt from Possession of Stolen Property

    People v. Moro, 23 N.Y.2d 496 (1969)

    The recent and exclusive possession of stolen property, if unexplained or falsely explained, allows a jury to infer that the possessor is a criminal, but the jury must determine whether the possessor is the thief or merely a receiver of stolen goods; the defendant cannot be convicted of both crimes.

    Summary

    Charles Moro was convicted of criminally concealing and withholding stolen property and possessing burglar’s tools, but acquitted of grand larceny. The key evidence involved a stolen car found near Moro, a known “street mechanic,” with alterations suggesting he was dismantling it. The New York Court of Appeals affirmed the conviction, holding that the jury could infer guilt from Moro’s unexplained possession of the stolen car, even though he was acquitted of stealing it. The court clarified that the inference of guilt arises from unexplained possession and does not violate the defendant’s right to remain silent.

    Facts

    Rene Cartayas reported his 1960 Oldsmobile stolen. Three days later, police officers familiar with Charles Moro, a local “street mechanic,” spotted him driving a similar car. The next day, the officers found the car, with the same license plate, near Moro. It had been partially dismantled and altered. Moro could not produce a driver’s license or registration for the car. The police confirmed the car was stolen from Cartayas. Moro possessed a key that fit the car. The car was inoperable when recovered.

    Procedural History

    Moro was indicted on five counts, but only three were submitted to the jury: grand larceny, criminally concealing and withholding stolen property, and unlawfully possessing burglar’s tools. The jury acquitted Moro of grand larceny but convicted him of the other two charges. Moro appealed, arguing it was improper to convict him of receiving stolen property and that the judge prejudiced him by remarking on his unexplained possession of the stolen car. The New York Court of Appeals affirmed the conviction.

    Issue(s)

    1. Whether a jury can convict a defendant of criminally receiving stolen property when there is evidence that someone else may have stolen the property, and the defendant was in recent and exclusive possession of it.
    2. Whether a judge’s remark about the defendant’s unexplained possession of a stolen car violates the defendant’s right to remain silent.

    Holding

    1. Yes, because the recent and exclusive possession of the fruits of a crime, if unexplained, justifies the inference that the possessor is a criminal, and the jury determines whether the possessor is the thief or merely a receiver of stolen goods.
    2. No, because the inference of guilt arises from the unexplained possession of the stolen property, and the judge properly instructed the jury not to draw any inferences from the defendant’s failure to testify.

    Court’s Reasoning

    The Court of Appeals relied on the established principle that “recent and exclusive possession of the fruits of crime, if unexplained or falsely explained, will justify the inference that the possessor is the criminal.” The court distinguished between the act of stealing and the act of receiving stolen property, noting that a defendant cannot be convicted of both crimes, but can be indicted for both, allowing the jury to determine the appropriate charge based on the evidence. In Moro’s case, the evidence suggested he may not have been the original thief but was instead dismantling the car, justifying the conviction for receiving stolen property. The court noted that the alterations to the car were not such that an experienced mechanic could not have performed them quickly.

    Regarding the defendant’s right to remain silent, the court clarified that the inference of guilt arises from the unexplained possession of the stolen property, not from the defendant’s failure to testify. The court emphasized that the inference can be overcome by evidence presented to explain the possession, even without the defendant’s testimony. The court also highlighted that the trial judge instructed the jury that no adverse inferences should be drawn from the defendant’s decision not to testify, mitigating any potential prejudice. The court cited Wangrow v. United States, 399 F. 2d 106, 118, supporting this view.

  • Adams v. Davidson, 10 N.Y. 309 (1851): Establishing Fraudulent Conveyance Through Lack of Possession

    Adams v. Davidson, 10 N.Y. 309 (1851)

    A transfer of property is deemed fraudulent against creditors when the assignor fails to relinquish actual possession and control of the property to the assignee, and the assignor continues to operate the business as before the assignment for their own benefit.

    Summary

    This case addresses the validity of a property assignment challenged as fraudulent by creditors. Brown assigned his assets to Davidson. Adams, acting on behalf of creditor Rathbone, levied on the assigned goods, arguing the assignment was fraudulent. The court held the assignment fraudulent because Brown retained control over the property, continuing to operate his business as usual even after the assignment to Davidson, indicating an intent to defraud creditors. This retention of control invalidated the assignment, allowing the creditor’s levy to stand.

    Facts

    Brown made an assignment to Davidson. Davidson told a clerk to observe the transaction. Brown told his clerk, Griffin, about the assignment. Brown retained the store keys and allowed Brown and Griffin to continue selling goods as usual. Brown told his brother-in-law the assignment was to induce Townsend & Wendell to provide bail and would be voided if successful. When the sheriff arrived to levy, Griffin did not disclose the assignment and promised the sheriff the proceeds of sales. Davidson did not make an inventory until after the levy.

    Procedural History

    Adams (representing Rathbone, a creditor) brought suit against Davidson, challenging the assignment. The lower court found in favor of Adams, deeming the assignment fraudulent. Davidson appealed to the Supreme Court, which affirmed the lower court’s decision in part and reversed in part. The case then went to the Court of Appeals.

    Issue(s)

    Whether the assignment from Brown to Davidson was fraudulent against creditors, specifically, whether Brown retained sufficient control over the property after the assignment to render it invalid.

    Holding

    Yes, because Brown did not relinquish control of the assigned property, continuing to operate his business and sell goods as before, indicating an intent to defraud creditors.

    Court’s Reasoning

    The court focused on the lack of actual and continued change of possession. The court emphasized that simply taking the keys symbolically was insufficient when Brown continued to operate the business as usual. The court highlighted the failure of Griffin to disclose the assignment to the sheriff as evidence of Brown’s continued control. The court noted that if Davidson was acting in good faith, he would have ensured a clear change in possession and control. The court also noted the significance of Davidson not calling Griffin as a witness to rebut the inference of fraud. The court stated the evidence showed that “there was not an actual, and much less a continued, change of possession of the assigned property.” The Court also notes, “The case, therefore, stands burdened, not only with the legal fraud resulting from the omission to take and continue the assigned property in the actual possession of the assignee, but with positive fraud in permitting Brown to sell for his own use and benefit as before.” Finally, the court states the assignment was at least in part created to coerce a third party to provide security for Brown, with the intention to void the assignment if successful.