The People of the State of New York v. Olivo, 52 N.Y.2d 309 (1981) Court of Appeals of the State of New York. COOKE, C.J. These cases present a recurring question in this era of the self-service store which has never been resolved by this court: may a person be convicted of larceny for shoplifting if the person is caught with goods while still inside the store? For reasons outlined below, it is concluded that a larceny conviction may be sustained, in certain situations, even though the shoplifter was apprehended before leaving the store. I In People v Olivo, defendant was observed by a security guard in the hardware area of a department store. Initially conversing with another person, defendant began to look around furtively when his acquaintance departed. The security agent continued to observe and saw defendant assume a crouching position, take a set of wrenches and secret it in his clothes. After again looking around, defendant began walking toward an exit, passing a number of cash registers en route. When defendant did not stop to pay for the merchandise, the officer accosted him a few feet from the exit. In response to the guard's inquiry, defendant denied having the wrenches, but as he proceeded to the security office, defendant removed the wrenches and placed them under his jacket. At trial, defendant testified that he had placed the tools under his arm and was on line at a cashier when apprehended. The jury returned a verdict of guilty on the charge of petit larceny. The conviction was affirmed by Appellate Term. II . . . . III In People v Spatzier, defendant entered a bookstore on Fulton Street in Hempstead carrying an attache case. The two co-owners of the store observed the defendant in a ceiling mirror as he browsed through the store. They watched defendant remove a book from the shelf, look up and down the aisle, and place the book in his case. He then placed the case at his feet and continued to browse. One of the owners approached defendant and accused him of stealing the book. An altercation ensued and when defendant allegedly struck the owner with the attache case, the case opened and the book fell out. At trial, defendant denied secreting the book in his case and claimed that the owner had suddenly and unjustifiably accused him of stealing. The jury found defendant guilty of petit larceny, and the conviction was affirmed by the Appellate Term. IV The primary issue in each case is whether the evidence, viewed in the light most favorable to the prosecution, was sufficient to establish the elements of larceny as defined by the Penal Law.

Modern penal statutes generally [include] a unified definition of larceny (see, e.g., American Law Institute, Model Penal Code [Tent Draft No. 1], 206.1 [theft is appropriation of property of another, which includes unauthorized exercise of control]). Case law, too, now tends to focus upon the actor's intent and the exercise of dominion and control over the property (see, e.g., People v Alamo, 34 N.Y.2d 453; People v Baker, 365 Ill 323; People v Britto, 93 Misc 2d 151, 154). Th[e] [current understanding of the definition of larceny] is particularly relevant to thefts occurring in modern self-service stores. In stores of that type, customers are impliedly invited to examine, try on, and carry about the merchandise on display. Thus in a sense, the owner has consented to the customer's possession of the goods for a limited purpose (see, e.g., Day v Grand Union Co., 280 App Div 253, 254-255). That the owner has consented to that possession does not, however, preclude a conviction for larceny. 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. It is this element that forms the core of the controversy in these cases. The defendants argue, in essence, that the crime is not established, as a matter of law, unless there is evidence that the customer departed the shop without paying for the merchandise. Although this court has not addressed the issue, case law from other jurisdictions seems unanimous in holding that a shoplifter need not leave the store to be guilty of larceny. This is because a shopper may treat merchandise in a manner inconsistent with the owner's continued rights and in a manner not in accord with that of a prospective purchaser without actually walking out of the store. Indeed, depending upon the circumstances of each case, a variety of conduct may be sufficient to allow the trier of fact to find a taking. It would be well-nigh impossible, and unwise, to attempt to delineate all the situations which would establish a taking. But it is possible to identify some of the factors used in determining whether the evidence is sufficient to be submitted to the fact finder. In many cases, it will be particularly relevant that defendant concealed the goods under clothing or in a container (see, e.g., People v Baker, 365 Ill 328, supra; People v Bradovich, 305 Mich 329, supra). Such conduct is not generally expected in a self- service store and may in a proper case be deemed an exercise of dominion and control inconsistent with the store's continued rights. Other furtive or unusual behavior on the part of the defendant should also be weighed. Thus, if the defendant surveys the area while secreting the merchandise or abandons his or her own property in exchange for the concealed goods, this may evince larcenous rather than innocent behavior. Relevant too is the customer's proximity to or movement towards one of the store's exits. Certainly it is highly probative of guilt that the customer was in possession of secreted goods just a few short steps from the door or moving in that direction. Finally, possession of a known shoplifting device actually used to conceal merchandise, such

as a specially designed outer garment or a false bottomed carrying case, would be all but decisive. Of course, in a particular case, any one or any combination of these factors may take on special significance. And there may be other considerations, not now identified, which should be examined. 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. V Under these principles, there was ample evidence in each case to raise a factual question as to the defendants' guilt. In People v Olivo, defendant not only concealed goods in his clothing, but he did so in a particularly suspicious manner. And, when defendant was stopped, he was moving towards the door, just three feet short of exiting the store. It cannot be said as a matter of law that these circumstances fail to establish a taking. In People v Spatzier, defendant concealed a book in an attache case. Unaware that he was being observed in an overhead mirror, defendant looked furtively up and down the aisle before secreting the book. In these circumstances, given the manner in which defendant concealed the book and his suspicious behavior, the evidence was not insufficient as a matter of law. VI . . . . VII 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 prosecution 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. Accordingly, in each case, the order of the Appellate Term should be affirmed. In each case: Order affirmed.

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