The opinion of the court was delivered by: Ciparick, J.:
This opinion is uncorrected and subject to revision before publication in the New York Reports.
In this appeal, we are called upon to determine whether defendant's written statement threatening to shoot a robbery victim with a gun constitutes legally sufficient evidence that he was in actual possession of a dangerous instrument at the time of the crime to support the charge of robbery in the first degree (Penal Law § 160.15 ). We hold that such statement, by itself, is legally insufficient.
Defendant was indicted on one count of first-degree robbery and on one count of grand larceny in the fourth degree (Penal Law § 155.30 ). During the Grand Jury proceeding, the People adduced evidence that on the afternoon of May 22, 2008, defendant entered a Staten Island bank, approached a teller assigned to one of the stations in the front and passed her a handwritten note. The note, written on the back of a deposit slip, stated, "I have a gun, Fill the bag. Don't say anything or I'll shoot." The teller, who did not testify in the Grand Jury that she saw a weapon, complied with the note's directive and filled defendant's bag with the money she had at her station. The teller returned the bag containing $1,810 to defendant, but retained the demand note. Once defendant walked out of the bank with the money, the teller locked the doors and notified the police.
Sometime thereafter, a detective responded to the scene. The detective retrieved video stills from the bank's surveillance equipment depicting defendant. An investigation ensued and four months later, the police took defendant into custody and placed him in a lineup. The teller viewed the lineup and identified defendant as the perpetrator of the bank robbery.
In an omnibus motion, defendant sought a dismissal of the two-count indictment or a reduction of its counts. Citing our decision in People v Pena (50 NY2d 400 ), defendant argued that the demand note indicating that he was armed with a loaded gun was insufficient to establish the element of actual possession of a dangerous instrument necessary to sustain the first-degree robbery charge. The People opposed the motion, contending that "[d]efendant's own statement -- an admission against penal interest -- was that he had a loaded gun, capable of being used to shoot the teller, and thus was readily capable of causing death or other serious physical injury." Alternatively, the People suggested that actual possession of a dangerous instrument was not an element of first-degree robbery under subdivision three of the statute and invited the motion court to determine that we decided Pena incorrectly.
Supreme Court, after inspecting the minutes from the Grand Jury proceeding, upheld the fourth-degree grand larceny charge, but, reduced the first-degree robbery count to robbery in the third degree (Penal Law § 160.05). Relying on Pena, it concluded that defendant's written statement threatening that he had a gun and that he would shoot, "without more," was legally insufficient to support a charge of first-degree robbery.
The Appellate Division, with one Justice dissenting, affirmed the order of Supreme Court. The court held that the People failed to establish that defendant was in "actual possession" of a dangerous instrument and that he was "readily capable of causing death or other serious physical injury" (People v Grant, 70 AD3d 711, 712 [2d Dept 2010]).
The dissenting Justice would have reversed the order of Supreme Court and reinstated the indictment for first-degree robbery. The Justice disagreed with the "proposition that a defendant's own words in the course of a robbery can never establish his or her actual possession of an unseen dangerous instrument" (id. at 715). The dissenting Justice granted the People's application for leave to appeal to our Court (14 NY3d 895 ) and we now affirm.
"To dismiss [or reduce] an indictment on the basis of insufficient evidence before a Grand Jury, a reviewing court must consider 'whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury'" (People v Bello, 92 NY2d 523, 525 , quoting People v Jennings, 69 NY2d 103, 114 ). The Legislature has defined legally sufficient evidence as "competent evidence which, if accepted as true, would establish every element of an offense charged" (CPL 70.10 ). "In the context of a Grand Jury proceeding, legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt" (Bello, 92 NY2d at 526). Thus, a reviewing court must determine "'whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes,' and whether 'the Grand Jury could rationally have drawn the guilty inference'" (id., quoting People v Deegan, 69 NY2d 976, 979 ).
With this framework in place, we now examine the elements necessary to establish the charge of first-degree robbery under Penal Law § 160.15 (3). The statute provides that "[a] person is guilty of robbery in the first degree when he forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime . . . uses or threatens the immediate use of a dangerous instrument." On appeal, defendant does not challenge that the evidence presented to the Grand Jury, if true, supplies proof that he forcibly stole property as defined by the Penal Law.*fn1 Rather, he contends that the Grand Jury did not consider sufficient evidence establishing that he was in actual possession of a dangerous instrument at the time of the incident. The People, in turn, have abandoned their argument made in the motion court that actual possession of a dangerous instrument is not a required element of first-degree robbery under subdivision three of the statute. They maintain, however, that defendant's handwritten note furnishes sufficient proof that he was in actual possession of a loaded gun. We agree with defendant.
In Pena, the defendants challenged the legal sufficiency of their convictions for first-degree robbery, charged under the theory that, acting in concert, they forcibly stole property and used or threatened immediate use of a dangerous instrument (see 50 NY2d at 405; see also Penal Law § 160.15 ). There, defendants Pena and Turrell accosted a man in a park, looking for money (see id. at 406). With his hand enclosed in a brown paper bag, Turrell thrust his arm toward the victim and threatened to shoot if he ran away (see id.). It appeared to the victim that Turrell was holding a gun (see id.). Meanwhile, Pena instructed the victim to surrender his coat and demanded $10 from him (see id.). Before the defendants retreated, they cautioned the victim that if he contacted the police, he would be killed (see id.). The victim ignored the defendants' warning and notified the police (see id.). The victim accompanied the police on a search and, a short time thereafter, he sighted the defendants standing side-by-side three blocks from the park (see id.). Pena was wearing the victim's coat and was holding the same type of brown paper bag that Turrell wielded during the robbery (see id.). The police arrested the defendants and recovered the bag that Pena was holding, which contained a knife (see id.). The People introduced both the bag and the knife into evidence at trial (see id.).
In analyzing the legal sufficiency of the evidence in Pena, we noted
as a threshold matter that first-degree robbery, as charged under
subdivision three of the statute, required a
finding "that Turrell actually possessed a dangerous
instrument at the time of the crime" (id. at 407). We observed that
the statute, as amended, mandated this showing "on the theory that it
was the employment of such an instrumentality that was significant" to
sustain the charge (id. at 408 n 2 [emphasis in original]).*fn2
Viewing the evidence in the light most favorable to the
People, we concluded that all the circumstantial proof adduced at
trial established a prima facie case that Turrell had a knife in his
possession at the time of the robbery and that he, alongside Pena,
used that knife to threaten the victim and forcibly steal property
(see id. at 409).
Following our decision in Pena, all four departments of the Appellate Division have adopted the rule that "[a] defendant's statement that he has a weapon or a threat that he will kill or harm his alleged victim is insufficient, without more, to sustain a conviction for an offense requiring proof that defendant used or threatened to use a dangerous instrument" (People v Peralta, 3 AD3d 353, 355 [1st Dept 2004]). For example, in People v Hilton (147 AD2d 427 [1st Dept 1989]), the victim testified that when she opened the door to her mother's apartment, she saw the defendant standing within an arm's length of her (see id. at 429). She further explained that the defendant claimed to have a gun and threatened to kill her and her daughter if she did not acquiesce to his demands for money (see id.). Neither the victim nor her daughter saw any weapon (see id.). Under these facts, the court concluded that the People "failed to prove by sufficient evidence that defendant actually possessed" a dangerous instrument (id. at 430; see also People v Moore, 185 AD2d 825, 826 [2d Dept 1992]; People v White, 155 AD2d 934, 934 [4th Dept 1989]; People v Robare, 109 AD2d 923, 924 [3d Dept 1985]).
Until today, we have not had the occasion to determine whether a defendant's statement that he possesses a dangerous instrument, standing alone, constitutes legally sufficient evidence that he is in actual possession of such weapon to support the charge of first-degree robbery under subdivision three of the statute. In Ford, a case we decided nearly three years ago, the defendant attempted to challenge the legal sufficiency of his first-degree robbery conviction on this basis. There, in the course of the robbery at issue, the defendant stated that he had a knife while simultaneously moving his hand toward his pants pocket (see 11 NY3d at 878). We examined the proof adduced at trial "in light of the court's charge as given without exception" and observed that the court did not instruct the jury that it had to find the defendant in actual possession of the knife at the time of the robbery (id.). Constrained by the court's unchallenged charge (see People v Sala, 95 NY2d 254, 260-261 ), we concluded that the defendant's "acts, considered together, provide[d] legally sufficient evidence to ...