People v. Olivo
420 N.E.2d 40, 52 N.Y.2d 309, 438 N.Y.S.2d 242 (1981)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A person commits the crime of larceny when they exercise dominion and control over merchandise in a manner wholly inconsistent with the continued rights of the owner, regardless of whether they have left the store premises.
Facts:
- In a department store, a security guard observed defendant Olivo take a set of wrenches and hide them in his clothes.
- Olivo then began walking towards an exit, passing several cash registers without attempting to pay.
- In a separate incident, store detectives observed defendant Gasparik tear the price tag and a security sensor off a leather jacket.
- Gasparik left his own jacket behind, put on the leather one, and walked past cash registers toward an exit for that floor.
- In a third incident, the owners of a bookstore observed defendant Spatzier, via a ceiling mirror, place a book into an attaché case he was carrying.
- After placing the book in his case, Spatzier looked up and down the aisle and then placed the case at his feet and continued to browse.
Procedural Posture:
- In separate proceedings, defendants Olivo, Gasparik, and Spatzier were each convicted of petit larceny in trial courts.
- Defendant Olivo's conviction was by a jury.
- Defendant Gasparik's conviction was by a court sitting without a jury.
- Defendant Spatzier's conviction was by a jury.
- All three defendants appealed their convictions to the Appellate Term, an intermediate appellate court.
- The Appellate Term affirmed all three convictions.
- The defendants then appealed to the New York Court of Appeals, the state's highest court.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a person commit the crime of larceny by exercising control over merchandise inconsistent with the owner's rights, even if they have not yet left the store?
Opinions:
Majority - Chief Judge Cooke
Yes. A person commits larceny by exercising control over merchandise in a manner inconsistent with the owner's rights, even without leaving the store. The court reasoned that the common law definition of larceny, which required a 'trespassory taking,' has evolved to focus on the actor's intent and their exercise of dominion and control over the property. In a modern self-service store, customers have implied consent to possess merchandise for a limited purpose. However, when a customer's actions are 'wholly inconsistent with the continued rights of the owner,' such as concealing merchandise or removing price tags, they have exceeded that consent and a 'taking' has occurred. The act of leaving the store is not a required element; rather, the crime is complete when the customer's conduct clearly demonstrates an intent to appropriate the property.
Analysis:
This decision modernizes the legal definition of larceny to address the realities of self-service retail environments. By shifting the focus from the physical act of leaving the premises to the actor's intent as demonstrated by their control over the goods, the court established a more flexible standard. This precedent provides a clearer legal basis for prosecuting shoplifters apprehended inside a store, resolving a previously unsettled question in New York law. It significantly impacts loss prevention strategies and the evidentiary requirements for establishing the 'taking' element of larceny in shoplifting cases.
