Matter of M.S.

[*1] Matter of M.S. 2004 NY Slip Op 51162(U) Decided on July 15, 2004 Family Court, Nassau County Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 15, 2004
Family Court, Nassau County

In the Matter of M.S., A Person Alleged to be a Juvenile Delinquent, Respondent.



xxx

Richard Lawrence, J.

In this matter, Respondent has been charged as a juvenile delinquent with respect to the following allegations, which if she were sixteen at the time of their commission, would be the following:

Petit Larceny in violation of §155.25 of the penal law, a Class A Misdemeanor; and attempted petit larceny in violation of §110/155.25 of the penal law, a Class B misdemeanor.

Attached to the petition is a one page deposition from the Loss Prevention Officer of a store denominated H&M located within the Roosevelt Field Mall, Old Country Road, East Garden City, New York.

Respondent moves this Court for an order dismissing the petition "for failure to state a crime."

For purposes of the instant motion, the Court must accept, as true, the statement of the Loss Prevention Officer. He states, in applicable part, that he observed the Respondent and another

removing lingerie and 3 skirts and 1 pair of jeans

from the display rack. [Defendant] concealed the lingerie

in a white footlocker bag and then handed this bag

to [Respondent] who then concealed the jeans inside

the bag. At this time [Respondent] proceeded to the

register with a key chain and [Defendant] proceeded to

exit the store with the white footlocker bag containing

said merchandise making no attempt to pay for said [*2]

concealed merchandise....[The Loss Prevention Officer]

then apprehended [the Defendant] outside the store and

recovered the merchandise from her possession.

The question presented is whether, under the facts as stated by the Loss Prevention Officer, an assuming such facts to be true, that the crime of Petit Larceny has been prima facie alleged.

The term larceny is defined in the penal law at §155.05 as follows:

1. A person steals property and commits larceny when,

with intent to deprive another of property or to

appropriate the same to himself or to a third person,

he wrongfully takes, obtains or withholds such property

from an owner thereof.

2. Larceny includes a wrongful taking, obtaining or

withholding of another's property, with the intent

prescribed in subdivision one of this section, com-

mitted in any of the following ways:

(a) By conduct heretofore defined or known as

common law larceny by trespassory taking, common

law larceny by trick, embezzlement, or obtaining

property by false pretenses.

Furthermore, the crime of petit larceny is defined in penal law §155.25 as follows:

"A person is guilty of petit larceny when he steals

property. Petit larceny is a class A misdemeanor."

The leading cases in New York State are People v Olivo, People v Gasparik, and People v Spatzier. All three are reported jointly at 52 NY2d 309 (1981), re-hearing denied 53 NY2d 797 (1981). These were cases of first impression in this state. Previously, the law was at best unsettled that unless a suspected "shoplifter" was physically outside the premises of the establishment, that she could not be successfully arrested and prosecuted. However, these three cases clearly state, in an opinion by the Chief Judge of the Court of Appeals, that a person caught with goods while still inside the store may be convicted of larceny if she exercises dominion and control wholly inconsistent with the rights of the owner, and so long as the other elements of the [*3]crime are present. The Court reviews the common law crime of larceny, and states, at page 317 "Case law, too, now tends to focus upon the actor's intent and the exercise of dominion and control over the property"

citing, among others, People v Alamo, 34 NY2d 453 (1974) and People v Britto, 93 Misc 2d 151 (Criminal Court of the City of New York, Bronx Cty, 1978).

The Chief Judge continues, at page 318: "if the customer exercises dominion and control wholly inconsistent with the continued rights of the owner, and the other elements of the crime are present, a larceny has occurred. Such conduct on the part of a customer satisfies the 'taking' element of the crime." The Court continues in footnotes, at the same page, that

also required, of course, is the intent prescribed

by subsection 1 of section 155.05 of the Penal

Law, and some movement when property other than an

automobile is involved...As a practical matter in shop-

lifting cases the same evidence which proves the taking

will usually involve movement. The movement, or aspor-

tation requirement has traditionally been satisfied

by a slight moving of the property (see Harrison v

People, 50 NY 518). This accords with the purpose

of the asportation element which is to show that the

thief had indeed gained possession and control of the

property (citing People v Alamo, supra and Harrison v

People, supra).

The Court continues at page 319:

In many cases, it will be particularly relevant that

the defendant concealed the good under clothing or

in a container....[and that] other furtive or unusual

behavior on the part of the defendant should also

be weighed....so long as it bears upon the principal

issue- - whether the shopper exercised control wholly

inconsistent with the owner's continued rights - - any

attending circumstance is relevant and may be taken

into account.

With respect to defendant Olivo, in which that defendant concealed goods in his clothing, and did so "in a particularly suspicious manner" (page 319) when he was stopped, he was moving toward the exit door of the store. "It cannot be said as a matter of law that these circumstances fail to establish a taking." Ibid at p. 320.

The Court concluded at page 321 as follows:

In sum, in view of the modern definition of the crime

of larceny, and its purpose of protecting individual

property rights, a taking of property in the self-service

store context can be established by evidence that a

customer exercised control over merchandise wholly

inconsistent with the store's continued rights. Quite

simply, a customer who crosses the line between the

limited right he or she has to deal with merchandise

and the store owner's rights may be subject to prose-

cution for larceny. Such a rule should foster the

legitimate interests and continued operation of self-

service shops, a convenience which most members of the

society enjoy.

Respondent relies upon the case of People v Parrett, 90 Misc 2d 541 (District Ct, Nassau Cty, 1977). In that matter, the trial court held, among other issues, that there was no proof that

defendant, who was confronted by store personnel prior to her exiting the store with merchandise allegedly unlawfully taken from the store, intended to deprive the owner of that merchandise, even though while in the fitting room the defendant allegedly placed a skirt and blouse into her hand bag, then went to a cash register on the main floor of the store, paid for two other items and then proceeded to the escalator to the upper floor. The defendant was apprehended at the top of the escalator as she arrived on the second floor.

After a bench trial, the Court stated, at page 544: I would hold that the asportation is an essential

element to the crime and until the person has actually

taken the property out of the store, you cannot actu- [*4]

ally establish beyond a reasonable doubt that the

defendant committed that crime....The court has

combed through numerous decisions involving "shop-

lifting" and not a single case of record appears

where a defendant was found guilty having been appre-

hended before leaving the premises of the store. In

this court's opinion, that is an essential element of

guilt in connection with such a charge.

In this Court's opinion, the Respondent's reliance upon Parret is misplaced, as firstly, it is a lower court decision not binding upon this Court and secondly, and more importantly, it was decided before People v Olivo, et al, supra.

Respondent's reliance upon People v Britto, supra, however, specifically criticizes the Parrett case, and Britto is mentioned approvingly in the Olivio et al cases.

In the circumstances, and as a matter of law, this Court cannot dismiss the instant petition.

With respect to the facts in the matter at bar (and again taking them as "facts" for purposes of this motion only), the deposition supporting the petition specifically states that the Respondent and another removed lingerie, skirts and jeans from a display rack, and that Respondent physically concealed the jeans

inside a footlocker bag. In this Court's opinion, this is

sufficient for asportation, and prima facie is sufficient to defeat a motion to dismiss. Accordingly, the motion is denied.

This constitutes the Decision and Order of the Court.

Dated: Westbury, New York

July 15, 2004