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Law School Case Brief

People v. Olivo - 52 N.Y.2d 309, 438 N.Y.S.2d 242, 420 N.E.2d 40 (1981)


Even though the owner consents to a customer's possession of goods for a limited purpose, that consent does not 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.


Defendants were convicted of petit larceny. Defendants claimed there was insufficient evidence to sustain their convictions because they were apprehended with the goods before they left the store. Each defendant claimed to have been either looking for a cashier or standing in line at a cashier when apprehended.


May a person be convicted of larceny for shoplifting if the person is caught with goods while still inside the store? 




The appellate division of the trial court affirmed. The primary issue in each case was 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. To resolve this common question, the court traced the development of the common-law crime of larceny and its evolution into modern statutory form. The court explained that as the reach of larceny expanded, the intent element of the crime became of increasing importance, while the requirement of a trespassory taking became less significant. Now, the element of "taking" formed the core of the controversy in these cases. Although the instant court had not yet addressed the issue, case law from other jurisdictions seemed unanimous in holding that a shoplifter need not leave the store to be guilty of larceny.

The court held that a taking of property could be established in a self-service store by evidence that a customer exercised control over goods in a way that was inconsistent with the owner's rights. First, the defendant not only concealed goods in his clothing, but he did so in a particularly suspicious manner, and he was stopped three feet from the door. Second, the defendant removed the price tag and sensor device from a jacket, abandoned his own jacket, put on the new jacket, and headed to the main floor. Third, the defendant concealed a book in his case and allegedly struck the storeowner when accused of theft. The court ruled that in each case the evidence was sufficient to sustain defendants' convictions as a matter of law.

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