Decided and Entered: October 08, 2026

Ind No. 2073/17|2073/17|Appeal No. 14269|Case No. 2019-3586|

Before: Renwick, P.J., Kennedy, Kapnick, Shulman, JJ.

[*1]

Judgment, Supreme Court, New York County (Gregory Carro, J.), rendered December 6, 2017, convicting defendant, upon his plea of guilty, of grand larceny in the fourth degree, and sentencing him to a five-year term of probation, unanimously affirmed.

This case is before us for the third time. On defendant's initial appeal, we agreed with him that he was "entitled to a hearing on the factual issue of whether or not the [Bergdorf Goodman] store security guard involved in his detention was licensed to exercise police powers, or acting as an agent of the police" (People v Sneed, 199 AD3d 90, 91 [1st Dept 2021]), and remanded the case for a hearing for that purpose.

On the eve of the hearing, the People disclosed that their sole witness would be Rosemary Mendez, the lead prevention investigator at Bergdorf, who was on duty on the day of defendant's arrest. Before the hearing commenced the next morning, defense counsel, who had just learned the identity of the People's witness that morning, requested an adjournment for the purpose of "subpoena[ing] materials from Bergdorf, such as store policies and employment records, relevant to the issue of whether the testifying witness was a state actor at the time of defendant's detention" (People v Sneed, 238 AD3d 573, 574 [1st Dept 2025]). The court denied defendant's request for an adjournment. On appeal, this Court ruled that declining to grant a short adjournment in these circumstances deprived defendant of a fundamental "right to adequately prepare for the hearing" and was an improvident exercise of discretion. We held the appeal in abeyance again and remanded for a new hearing, to "be conducted after defense counsel is given an opportunity to subpoena the pertinent Bergdorf records" (id. at 575).

That second state action hearing has been conducted, and the court ruled that Bergdorf's loss prevention employees were not state actors at the time of the incident. That determination is fully supported by the evidence. The only points of contact between the store loss prevention staff and the police in this case was that when the store personnel, independent of the police, determined to refer the case to the police, they used NYPD forms to make a complaint, called 911, and waited for the police to take custody of the suspect. This conduct fell short of transforming the private security staff into state actors because their conduct did not become "so pervaded by governmental involvement that it los[t] its [private] character" (People v Ray, 65 NY2d 282, 286 [1985]).

We have considered defendant's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: October 8, 2026