## Facts

- Gerard Rollino was indicted for grand larceny in the second degree and tried in a bench trial.
- Edwin Martinez, an employee of Long Island Drug Company, reported that Rollino proposed a plan to steal drug products from the company.
- Martinez feigned agreement and informed his employer, which enlisted a private detective agency and the police.
- With the owner’s knowledge and consent, Martinez (as the owner’s agent and cooperating with law enforcement) delivered a package of drugs (or substitute drugs) to Rollino under surveillance in exchange for money.
- Rollino took the package but left it in a car because he feared he was being watched; he later returned, picked it up, put it back, and attempted to leave.
- Police apprehended Rollino at the scene.
- After trial, Rollino moved to dismiss the indictment on the ground that the owner’s consent defeated larceny and attempt liability.

## Issues

1. Whether larceny is established when property is delivered to the defendant with the owner’s consent through an agent acting with law enforcement in a sting operation.
2. Whether attempted larceny can be sustained when, even if the defendant achieved exactly what he intended, the completed conduct would not constitute larceny because the taking was consensual (legal impossibility).

## Decision

- The court granted the motion to dismiss and dismissed the indictment.
- The court held Rollino could not be convicted of grand larceny because the owner, acting through its agent, consented to the delivery, eliminating any trespassory taking.
- The court also held Rollino could not be convicted of attempted grand larceny because the absence of a trespass meant the intended completed act was not criminal, constituting legal impossibility.

## Legal Principles

- Larceny requires a trespassory taking and carrying away of another’s property without the owner’s consent.
- When an owner’s agent, cooperating with authorities, voluntarily delivers the property to the defendant for the purpose of apprehension, the element of trespass is absent and larceny is not established.
- Under then-existing New York doctrine, legal impossibility is a complete defense to attempt: if the actor’s intended, completed conduct would not be a crime, there is no attempt liability, even if the actor believed he was committing a crime.
- The distinction between factual impossibility (generally not a defense to attempt) and legal impossibility (a defense) controls where the only barrier to liability is that the contemplated act is not criminal as defined by law.

## Conclusion

Because the owner’s agent delivered the property with the owner’s consent as part of a law-enforcement operation, there was no trespassory taking and thus no larceny; for the same reason, the intended conduct was not criminal, barring attempt liability on a legal impossibility theory, and the indictment was dismissed.


People v. Rollino, 233 N.Y.S.2d 580 (N.Y. Sup. Ct. 1962)