This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 68
The People &c.,
Respondent,
v.
Jafari Lamont,
Appellant.
Janet C. Somes, for appellant.
Leah Mervine, for respondent.
RIVERA, J.:
Defendant Jafari Lamont challenges his conviction for
two counts of attempted robbery in the second degree on the basis
that the evidence was legally insufficient to establish he had
the specific intent to steal. We conclude that defendant's
conduct and the surrounding circumstances provided legally
sufficient evidence of the requisite intent to support
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defendant's conviction.
According to the undisputed evidence at defendant's
nonjury trial, at approximately 6:30 am, before the morning
business hours, defendant and an accomplice appeared armed and
masked at the rear door of a Wendy's fast-food establishment.
The two lone employees who were preparing to open heard loud
knocking, and one of them checked the security camera and saw
defendant and his accomplice outside the back, knocking on the
door. The employee did not let the two men in, but instead
called his supervisor and 911.
A police officer responded in a marked patrol car, and
as he pulled up with his car lights shining on the back of the
Wendy's he saw two men hiding behind some stacked up crates.
Upon seeing the car lights, defendant and his accomplice ran in
different directions, with defendant running towards the officer.
The officer saw defendant dressed in dark blue
clothing, wearing a black knit hat, black gloves and a black mask
over his face, and observed defendant carrying what appeared to
be a black handgun. When the officer drew his weapon, defendant
ran towards the nearby highway. The officer followed in his car
and later tracked defendant on foot, at which point a K-9 officer
responded to the first officer's call for assistance. During the
chase, the officers recovered a black knit hat and a black glove.
When the officers eventually caught up with defendant they found
him hiding between two buildings, and in possession of a backpack
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which contained a pair of green, black and yellow gloves.
A subsequent search in the vicinity of the Wendy's led
police to discover two BB guns.1 The police found one about 10
feet from the establishment's rear door, near where the first
officer initially spotted defendant. The police recovered the
other from defendant's car, which the police found parked in a
lot about 50 feet away from the Wendy's.
The People charged defendant with two counts of
attempted robbery in the second degree (Penal Law §§ 110.00,
160.10 [1] and Penal Law §§ 110.00, 160.10 [2] [b]) and one count
of attempted burglary in the second degree (Penal Law §§ 110.00,
140.25 [1] [d]). At trial, defendant stipulated to the
introduction into evidence of footage from the security camera,
which showed the two masked men looking in and knocking on the
Wendy's rear door, while holding what appeared to be guns. He
further stipulated that he was one of the masked men and that he
was the person who ran towards the officer and who was later
apprehended by the police.
In addition to the police testimony, the People relied
on statements from the two coworkers and the supervisor who were
on the morning shift the day of the incident. These individuals
testified that they did not recognize defendant's name, and that
1
Although the police officer testified that the gun found in
the defendant's car was a pellet gun, the parties' stipulation
referred to the two guns "found at or near the scene" as BB guns.
Therefore, we refer to the two guns accordingly.
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the Wendy's was closed when defendant attempted to enter. They
also confirmed what was obvious from the security footage, that
defendant and his accomplice were carrying what appeared to be
firearms, and wore masks and gloves.
County Court convicted defendant of both the attempted
robbery counts and acquitted him of attempted burglary. A
majority of the Appellate Division affirmed, concluding, as
relevant to this appeal, that there was legally sufficient
evidence to support defendant's conviction on the robbery counts
(People v Lamont, 113 AD3d 1069 [4th Dept 2014]). Two Justices
dissented, arguing that the evidence was insufficient to
establish beyond a reasonable doubt that defendant had the
specific intent to steal, as required for attempted robbery. A
Justice of the Appellate Division granted defendant leave to
appeal (22 NY3d 1160). We now affirm.
On appeal to us, the entirety of defendant's challenge
to his attempted robbery conviction is his allegation that the
evidence was legally insufficient to establish the requisite
intent to steal. He contends that while the evidence may
establish what appears to be some type of attempted criminal
behavior, it does not support a valid inference that defendant
intended to steal. The People respond that defendant's intent to
commit robbery is established by defendant's conduct and the
surrounding circumstances.
The law is well-established that "[a] verdict is
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legally sufficient if there is any valid line of reasoning and
permissible inferences that could lead a rational person to
conclude that every element of the charged crime has been proven
beyond a reasonable doubt" (People v Delamota, 18 NY3d 107, 107).
Where the defendant has been convicted, "[t]he evidence must be
viewed in the light most favorable to the People," recognizing
that "the People are entitled to all reasonable evidentiary
inferences" (Delamota, 18 NY3d at 113). As this Court has
recognized in the past, "[t]he element of intent is rarely proved
'by an explicit expression of culpability by the perpetrator';
and 'competing inferences to be drawn regarding the defendant's
intent, if not unreasonable, are the exclusive domain of the
finders of fact, not to be disturbed' by us" (People v Bueno, 18
NY3d 160, 169 [2011], citing People v Barnes, 50 NY2d 375, 381
[1980]).
On the record before us, we agree that the evidence was
sufficient for a rational finder of fact to find defendant guilty
of two counts of attempted second degree robbery. "A person is
guilty of an attempt to commit a crime when, with the intent to
commit a crime, [the person] engages in conduct which tends to
effect the commission of such crime" (Penal Law § 110.00).
"Essentially, then, an attempt is an act done with an intent to
commit some other crime" (People v Bracey, 41 NY2d 296, 299
[1977], citing People v Moran, 123 NY 254, 257 [1890]). Here,
the attempted crime is second degree robbery, which is
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established when a person "forcibly steals property" and "is
aided by another person actually present" or "displays what
appears to be a ... firearm" (Penal Law §§ 160.10 [1], [2] [b]).
A person "forcibly steals" when the person "uses or threatens the
immediate use of physical force upon another person for the
purpose of . . . compelling the owner of such property or another
person to deliver up the property" (Penal Law § 160.00 [2]). The
requisite mental state for robbery is the "intent to permanently
deprive the owner of the property" (People v Miller, 87 NY2d 211,
217 [1995]). Thus, the People had to prove beyond a reasonable
doubt that defendant intended to forcibly steal property from an
employee at the Wendy's by threat or use of physical force.
Even absent direct evidence of intent, a conviction may
be sustained where sufficient evidence exists to infer the
requisite intent from the defendant's conduct and the surrounding
circumstances (People v Rodriguez, 17 NY3d 486, 489 [2011],
citing Bracey, 41 NY2d at 301). As a practical matter,
circumstantial evidence of intent is often essential to
prosecution for an attempted crime because, as this Court is
acutely aware, such evidence "'may be the only way of proving
intent in the typical case' of criminal attempt" (Bracey, 41 NY2d
at 301).
Turning to the specific facts of defendant's case, we
conclude that there is sufficient circumstantial evidence based
on defendant's appearance and conduct, and the surrounding events
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to support an inference that defendant intended to commit second
degree robbery. With respect to his appearance, defendant and
his accomplice were dressed and equipped for criminal acts
involving force and threatening behavior in furtherance of a
robbery. They wore masks and gloves to enhance their criminal
persona and avoid identification by facial recognition or
fingerprint verification, and they carried what appeared to be
handguns. In addition, defendant was apprehended carrying a
backpack, which provided a convenient means to carry stolen
property and which contained some additional gloves.
The conduct of defendant and his accomplice further
evinced an intent to burglarize the Wendy's. The men were
knocking loudly on the commercial establishment's rear door, an
entry point not generally used by the public. They appeared
early in the morning, before regular hours, with no apparent
lawful purpose, and while two employees were alone and busy
preparing to open for business. Moreover, defendant planned his
escape in advance by parking his car in the nearby lot. This
apparent familiarity with the area and the employees' arrival
time, and the attempted entry through a locked back door and the
availability of a get away vehicle suggests that defendant and
his accomplice had previously assessed the establishment's
vulnerability to robbery. Therefore, on this record, the finder
of facts had ample evidence to conclude that defendant's dress,
conduct and the surrounding circumstances are commonly associated
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with the crime of robbery.
Defendant contends that the evidence was equivocal
because it is just as likely to suggest some other criminal act,
such as assault, rape, and murder. The People respond that the
evidence belies defendant's argument that the facts support
reasonable inferences of some alternative criminal intent.
Defendant and the People both cite to People v Bracey in support
of their respective arguments. We find the People's argument
persuasive and agree that, in accordance with Brady, the evidence
supports the inference that defendant intended to commit robbery,
rather than some other crime.
In Bracey, two defendants entered a store carrying a
gun concealed in a bag, looked around, made a token purchase, and
left. One defendant then drove the car -- which had its license
plates removed -- around the block and parked it down the street.
The other defendant re-entered the store with his gun drawn. At
that moment, the police arrived in response to an earlier call
from the store clerk who had found defendants previous behavior
suspicious, and both defendants were eventually arrested. This
Court upheld defendants' convictions for robbery in the second
degree, noting that "intent may be inferred from the defendant's
conduct and the surrounding circumstances" (see Bracey, 41 NY2d
at 302). Although the Court noted that the act of walking into a
store with a gun in hand "does not unequivocally establish that
[defendants] intended to commit a robbery," the Court ultimately
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concluded that defendants' "conduct obviously fit[] a pattern
common to robberies" (id.).
Here, the actions of the defendant and his accomplice,
and the circumstances of the incident do not comport easily with
a crime other than robbery. Notably, the coworkers and the
supervisor testified they did not know defendant's name, thus
discounting the possibility that defendant's aim was to commit
some other crime more commonly associated with a specific target.
Further, defendant's use of a BB gun supports an inference of
intent to forcibly steal rather than an intent to commit murder.
On light of this record, it would require speculation to
interpret the evidence as defendant suggests (see Bracey, 41 NY2d
296). Therefore, the trier of fact was entitled to conclude that
it was not a reasonable possibility under the circumstances to
find that defendant intended some criminal act other than
robbery.
That the underlying facts reveal a somewhat different
pattern of criminal conduct from the one this Court identified as
common to the robbery pursued by defendants in Bracey means only
that the pattern followed by defendant and his accomplice here
reflects the characteristics and features of the robbery they
attempted to commit. In other words, the conduct in each case
reveals a pattern designed for the circumstances attendant to the
specific crime, and provides a factual basis to infer the intent
to commit robbery, albeit robbery of a particular nature.
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In Bracey, the acts of entering and exiting the
premises, initially concealing the weapon while inside the store
and before the actual robbery, and riding around the immediate
area, evinced the defendants' efforts to assess the scene and any
potential problems before conducting the crime. Those facts were
sufficient to draw an inference of defendants' intent to rob the
store in the middle of the day, in open view to the general
public.
In contrast, here there was evidence that defendant,
who was unknown to any of the employees present that morning, and
had no apparent business at Wendy's, nevertheless showed up
masked and armed, carrying a backpack, seeking entry at 6:30 am
through a locked rear door not used by the public, with an escape
vehicle conveniently parked nearby. This fit the pattern common
to an early morning robbery of a commercial establishment and was
sufficient to support the inference that defendant intended to
steal.
Accordingly, the Appellate Division order should be
affirmed.
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Order affirmed. Opinion by Judge Rivera. Chief Judge Lippman
and Judges Read, Pigott, Abdus-Salaam and Stein concur. Judge
Fahey took no part.
Decided May 14, 2015
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