New York Criminal Lawyer Blog
In this case, a security officer assigned at an airline’s hangar at Kennedy Airport was approached on numerous occasions in the spring of 1976 by the defendant, who indicated an interest in securing entry to the hangar and in taking money from the safe therein. The security officer was offered the chance to make some money if he co-operated. A New York Criminal Lawyer said during the course of these conversations, he was asked, in increasing detail, about the alarm system in operation at the hangar. The security officer reported these conversations to his supervisor, the head of security of the airline.
The security officer had been in continual touch with his supervisors and the police had been alerted. Indeed, by the time Defendant was permitted into the hangar, one gate was manned by an undercover police officer posing as a security guard.
On October 26, 1976, Defendants called the security officer and told him they wanted to “come in that night.” At 11:15 P. M. The security officer met defendant at a diner. At 11:30 they entered a car and were joined by the co-defendants, who was carrying an attache case. Enroute to the airport, defendant discussed the job with the security officer. Defendant told him that in five years, “when its all over,” his share would be sent to him. Defendant advised him that in order to make it “look good” he would shackle him and take his gun. The other security guard would be tied and dropped off at the edge of the airport.
Upon their arrival at the hangar, the four men entered the building via a loading platform. They walked toward the main vault but were stopped by the police some 25 to 50 feet before they reached their destination. The attache case was found to contain a number of tools including home-made gear for “exploring a circuit,” a C clamp used to make a ground connection, a hand set, such as is mainly used by telephone repairmen, and jumpers which could be used to bypass a circuit.
Defendants were indicted for burglary in the third degree, attempted grand larceny in the second degree, conspiracy in the third degree and possession of burglar’s tools.
Subsequently, one of the defendants made an omnibus motion which sought, inter alia, inspection of the Grand Jury minutes and dismissal of the indictment. * Criminal Term granted the motion to the extent of dismissing the burglary and attempted grand larceny counts of the indictment. The burglary count was dismissed upon the ground that respondent’s entry into the hangar “was with the consent of the security agent and his superiors.” The attempted grand larceny charge was dismissed upon the ground that the evidence adduced failed to show that respondent was “very near to the accomplishment of the intended crime.”
It is from the dismissal of these two counts of the indictment that the Prosecution appealed.
The court held that the burglary and attempted grand larceny counts should be reinstated.
In the instant case, if the evidence before the Grand Jury was sufficient to establish that respondent believed he was entering the hangar unlawfully i. e., without consent of the airline with intent to commit a crime therein, it was error for Criminal Term to have dismissed the indictment for burglary.
The court found that the requisite mental culpability was sufficiently established by the testimony before the Grand Jury. It is patent that respondent did not believe he had the consent of the airline or its authorized representative to enter the hangar. Moreover, the evidence before the Grand Jury was more than adequate to support the inference that respondent intended to commit a larceny within the hangar. Accordingly, the count of the indictment charging burglary in the third degree was improperly dismissed.
As to the count of the indictment charging attempted grand larceny, the said count should not have been dismissed if (a) there was sufficient evidence to establish that respondent intended to commit a specific crime and (b) there was proof that respondent “acted to carry out his intent.”
Although Criminal Term correctly stated the standard to be applied, viz., whether respondent was “very near to the accomplishment of the intended crime,” the court held that a number of facts militate toward this conclusion. One or more of the defendants reconnoitered the premises and the vault to be opened on a number of occasions. While these actions might not, in and of themselves, constitute a sufficient “overt act”, a certain “firmness of purpose is shown when the actor proceeds to scout the scene of the contemplated crime in order to detect possible dangers and to fix on the most promising avenue of approach”
In addition, defendants were not only in possession of the tools needed to accomplish their intended crime, but they possessed these tools within 25 to 50 feet of the main vault. Finally, defendants had already effected what they believed to be an unlawful entry into the premises to be burglarized and were, figuratively if not literally, within sight of their goal. Under these circumstances, the count of the indictment charging attempted grand larceny should not have been dismissed.
Stephen Bilkis and Associates with its New York Grand Larceny Lawyers can assist you to win your cases before the court. It has offices within New York Metropolitan area, including Corona, New York.