The opinion of the court was delivered by: Smith, J.:
This opinion is uncorrected and subject to revision before publication in the New York Reports.
Defendants, Michael Hall and John Freeman, were accused of robbing a store and using a stun gun to incapacitate the store manager temporarily. We agree with the Appellate Division that the People failed to prove that the stun gun was a "dangerous instrument" as defined in the Penal Law, and that therefore defendants' convictions for first degree robbery and fourth degree weapon possession cannot stand. However, we sustain defendants' convictions for second degree robbery.
The People's main witness was the store manager, Saidou Sow. Sow described a robbery by four men; Marcus Mitchell and Wesley Lee took cell phones from the store, while Hall knocked Sow down and dragged him outside and Freeman observed the events and shouted instructions. Hall, according to Sow, had something in his hand "like a toy gun," which he put against Sow's chest three times, producing a sensation "like a fire coming out of the toy gun." Describing Hall's third use of the stun gun, outside the store, Sow testified:
"Mr. Freeman was at the door of the store.
He was yelling to his friends to use the gun against my body so that's the time he put on me. When he put on me, I couldn't do nothing. I dropped my hand. Mr. Freeman was there yelling, put the gun on his chest, put the gun on his chest. When he done that I couldn't move anymore."
Sow quickly recovered, however, and confronted Lee, who was coming out of the store with stolen cell phones. When Sow grabbed Lee, Freeman in turn grabbed Sow from behind, holding him while Lee hit Sow in the face three times.
A security camera in the store captured some of the scene on a videotape, which was played for the jury. On the tape, the face of the man whom Sow identified as Hall is concealed, but Freeman's face is visible, and Freeman can be seen grabbing and holding Sow while Lee hits him.
The jury convicted both defendants of one count of first degree robbery, two counts of second degree robbery and one count of fourth degree criminal possession of a weapon. The Appellate Division modified to vacate the first degree robbery and fourth degree weapon possession charges, and as modified affirmed (People v Hall, 79 AD3d 1068 [2d Dept 2010]; People v Freeman, 79 AD3d 1064 [2d Dept 2010]). A Judge of this Court granted the People and both defendants leave to appeal, and we now affirm.
Under Penal Law § 160.15 (3), a person commits robbery in the first degree "when he forcibly steals property and . . . [u]ses or threatens the immediate use of a dangerous instrument." Under Penal Law § 265.01 (2), a person commits criminal possession of a weapon in the fourth degree when "[h]e possesses any . . . dangerous . . . instrument . . . with intent to use the same unlawfully against another." A "dangerous instrument" is defined in Penal Law § 10.00 (13) as "any instrument . . . which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury." And "serious physical injury" is defined in Penal Law § 10.00 (10) as "physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ."
Here, the charges of first degree robbery and of weapon possession were premised on the theory that the stun gun Hall used (at Freeman's urging) on Sow was a "dangerous instrument." Perhaps it was, but we agree with the Appellate Division that the People wholly failed to prove it.
The stun gun was not recovered, and no expert or other witness was called to explain to the jury what a stun gun is, or what it can do. The only evidence of the weapon's potential for harm came from Sow's testimony, which described pain, a burning sensation and temporary incapacitation. These are very unpleasant things to experience, but they are not "serious physical injury" as the statute defines it. The jury had no basis for concluding that the stun gun was readily capable of killing or maiming someone, or of causing any of the other severe harms described in Penal Law § 10.00 (10).
The People's argument is that the jury could have inferred "that, if defendant had continued to use the stun gun . . . it could have caused burn scars or caused the victim to fall limp and suffer serious physical injury by striking his head on the ground or crashing into the glass counters in his store." This sort of speculation is not a permissible ground for a verdict. Of course, almost any weapon could cause death or serious physical injury, for example by propelling the victim into a hard or ...