State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 31, 2014 103523 

________________________________

THE PEOPLE OF THE STATE OF

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

HAZEL E. GORDON,

Appellant.

________________________________

Calendar Date: October 19, 2012

Before: Stein, J.P., Garry, Egan Jr., Devine and Clark, JJ.

__________

Aaron A. Louridas, Delmar, for appellant.

P. David Soares, District Attorney, Albany (Kenneth C.

Weafer of counsel), for respondent.

__________

Garry, J.

Appeal (upon remittal from the Court of Appeals) from a

judgment of the Supreme Court (Lamont, J.), rendered April 23,

2010 in Albany County, upon a verdict convicting defendant of the

crimes of robbery in the first degree, robbery in the second

degree (two counts) and assault in the second degree.

This matter arises from a 2009 incident at a shopping mall

in the Town of Colonie, Albany County. Following the prior

decision of this Court (101 AD3d 1158 [2012]), the Court of

Appeals granted leave to appeal and, finding the evidence legally

sufficient, reinstated defendant's convictions for robbery in the

first degree and robbery in the second degree (two counts),

remitted the case for our consideration of the facts relative to

these convictions, and, as so modified, affirmed (___ NY3d ___,
-2- 103523 

2014 NY Slip Op 04227 [2014]). Accordingly, we must resolve

defendant's contention that the robbery convictions are against

the weight of the evidence.

Where, as here, an acquittal would not have been

unreasonable, this Court must view the evidence in a neutral

light and weigh the probative force of the conflicting testimony

and any rational inferences that may be drawn from the evidence

(see People v Danielson, 9 NY3d 342, 348 [2007]; People v Dean,

70 AD3d 1193, 1194 [2010]). At trial, a loss prevention officer

for a department store in the mall testified that he became

suspicious when, using security cameras, he saw defendant remove

two pairs of earrings from a display rack and hide them among

clothing in her arms. After directing a second loss prevention

officer to follow defendant and her female companion, the first

officer saw defendant remove the packaging in which the earrings

were displayed and drop it on the floor; her companion did the

same with a third pair of earrings. The second officer testified

that he retrieved the three pieces of packaging from the floor,

and they were later introduced into evidence. Both officers

continued to observe the women as they moved through various

areas of the store and were joined by defendant's teenage son. 

When the group exited the store, the second officer followed

them, identified himself, and asked defendant to return because

she had merchandise that had not been paid for. Defendant became

irate, denied stealing anything, and began pounding on the second

officer's chest with closed fists. When the first officer

arrived, she pulled two pens from her bag, swiped them at the

officers as if to stab them, and threatened to kill them. The

officers backed off, called police, and followed the group to the

mall exit. There, another confrontation occurred in which

defendant's son pulled a knife and then fled, pursued by the

first officer, who saw him tossing items from his pockets into a

nearby cemetery. The second officer chased the women to

defendant's car, where the fracas continued as defendant again

swiped at him with pens and injured a store employee by swerving

her car toward him as she drove away; defendant was ultimately

subdued by police with a taser. Defendant, her companion and her

son, as well as defendant's car and the pursuit area, were all

searched, but no stolen property was ever recovered. In addition

to the officers' testimony and that of other witnesses, the jury
-3- 103523 

also saw extended security camera footage depicting defendant's

actions inside the store and part of the altercation thereafter.

For purposes of charges of robbery in the first or second

degree, a defendant commits forcible stealing when, during the

commission of a larceny, he or she uses or threatens the

immediate use of force against a person in order to "[p]revent[]

or overcom[e] resistance to the taking of the property or to the

retention thereof immediately after the taking" (Penal Law

§ 160.00 [1]; see Penal Law §§ 160.10 [1], [2] [a]; 160.15 [3]). 

As the Court of Appeals has recently instructed, recovery of the

property is not necessarily required to support a conviction, and

whether a defendant's intent in using force was to retain

possession of stolen property is a question of fact that may be

answered based upon reasonable inferences drawn from his or her

conduct and the surrounding circumstances (2014 NY Slip Op 04227

at *5). Where an inference of intent is not unreasonable, it is

"within the exclusive domain of the finders of fact, not to be

disturbed by [a reviewing court]" (People v Bueno, 18 NY3d 160,

169 [2011] [internal quotation marks, brackets and citations

omitted]; see People v Smith, 79 NY2d 309, 314-315 [1992]). 

Here, upon consideration of the reasonable inferences to be drawn

from the evidence and testimony regarding defendant's suspicious

actions in the store and aggressive conduct immediately

thereafter, and according appropriate deference to the jury's

factual assessments and credibility determinations, we find that

the verdict was not contrary to the weight of the evidence

(compare People v Horton, 106 AD3d 1192, 1194 [2013], lv denied

21 NY3d 1016 [2013]; People v Fisher, 52 AD3d 1120, 1120-1121

[2008], lv denied 11 NY3d 832 [2008]).

Stein, J.P., Egan Jr., Devine and Clark, JJ., concur.
-4- 103523 

ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court