A. Stewart, for appellant.
William H. Branigan, for respondent.
face the question of whether the facts of this case fit
within our analysis in People v Lopez (73 N.Y.2d 214');">73 N.Y.2d 214');">73 N.Y.2d 214');">73 N.Y.2d 214');">73 N.Y.2d 214');">73 N.Y.2d 214');">73 N.Y.2d 214');">73 N.Y.2d 214
). We conclude they do. In Lopez, there was
testimony that a defendant placed one of his hands under his
clothing and conveyed to the witness that he had a gun. We
held this evidence to be legally sufficient to establish
display of what appears to be a firearm under Penal Law
§ 160.15 (4). Here, the evidence presented a question of
fact for the jury to determine whether a reasonable person
would believe that defendant displayed what appeared to be a
was charged with attempted robbery in the first degree (Penal
Law §§ 110.00 [attempt], 160.15  ["forcibly
steals property and..., in the course of the commission of
the crime or of immediate flight therefrom, ... (d)isplays
what appears to be a... firearm"]). His identity as the
perpetrator of the attempted robbery is not disputed. Rather,
the question before us is whether the evidence is legally
sufficient to establish that defendant's conduct amounted
to displaying what appeared to be a firearm. Defendant seeks
reduction of his conviction to attempted robbery in the third
trial, the teller at a check cashing store testified that
defendant demanded money, told her repeatedly that he had a
gun, verbally threatened to shoot her, and "showed"
her, by means of a hand placed under his sweatshirt, that a
gun was concealed there. When defendant was arrested in the
vicinity, after abandoning the robbery attempt, no firearm
precise moment at which defendant placed one of his hands
under his hooded sweatshirt is not clear from the record.
During her testimony, the teller physically demonstrated an
action performed by defendant or a pose assumed by him,
explaining that defendant "was doing this" and
"showed me like this, " and that he thereby
conveyed to her that he had a gun underneath his sweatshirt.
Asked whether defendant had "reached into his
waistband" and "put one of his hands under his
hoodie, " she answered both questions in the
affirmative. However, the teller was not expressly asked
whether defendant placed his hand under his sweatshirt after
entering the store.
moved to dismiss on the ground that the teller's
testimony had been "extremely vague" in regard to
his bodily stance or actions. The trial court denied the
motion, citing People v Lopez, and reasoning that
"although words alone cannot constitute display[ing]
what appears to be a firearm, ... the words spoken by
[defendant] consistent with the physical display... in terms
of his manipulations and his waistband... present a question
of fact for the jury as to whether a reasonable person could
perceive that there is the presence of a gun."
trial court instructed the jury on attempted robbery in the
first degree as well as the lesser included offense of
attempted robbery in the third degree. Defendant did not
request a jury instruction on the affirmative defense to
robbery in the first degree or an instruction on robbery in
the second degree as a lesser included offense, and no such
charge was provided to the jury. The jury found defendant
guilty as charged.
appeal, defendant challenged his conviction on legal
sufficiency grounds. The Appellate Division affirmed the
trial court's judgment, holding that "[t]he
prosecution presented sufficient evidence establishing that
the defendant displayed what appeared to be a firearm while
attempting to commit a robbery at a check-cashing store"
(124 A.D.3d 918, 918 [2d Dept 2015]).
of this Court granted defendant leave to appeal (26 N.Y.3d
1043 ). We now affirm.
person is guilty of robbery in the first degree under Penal
Law § 160.15 (4)
"when he [or she] forcibly steals property and when, in
the course of the commission of the crime or of immediate
flight therefrom, he [or she] or another participant in the
crime... [d]isplays what appears to be a... firearm; except
that in any prosecution under this subdivision, it is an
affirmative defense that such... firearm was not a loaded
weapon from which a shot, readily capable of producing death
or other serious physical injury, could be discharged."
statute, enacted in 1969, "assumes that the object
consciously displayed as a firearm was what it appeared to be
and places on the defendant the burden of showing that it was
not, in which case he could only be convicted of the lesser,
second degree offense [Penal Law § 160.10 (2) (b)]"
(Lopez, 73 N.Y.2d at 220, citing People v
Lockwood, 52 N.Y.2d 790');">52 N.Y.2d 790');">52 N.Y.2d 790');">52 N.Y.2d 790 ; see also Mem in
Support, Bill Jacket, L 1969, ch 1012, at 3).
principal argument may be summarized as follows. The victim
did not testify with precision as to whether defendant had
his hand in his waistband from the beginning of the encounter
or placed it there while threatening to shoot her. Therefore,
defendant would have us conclude, a rational jury could not
have found beyond a reasonable doubt that defendant performed
an intentional act of displaying what appeared to be a
firearm. Relatedly, defendant suggests that insofar as there
is no evidence that he created the appearance of a gun being
brandished or pointed toward the victim, the jury could not
have reasonably inferred that he displayed what appeared to
be a firearm. In a secondary argument, defendant contends
that the People failed to prove that he consciously or
deliberately displayed what appeared to be a firearm.
controlling precedent is People v Lopez.
Nevertheless, a review of the background predating
Lopez is informative.
People v Lockwood (1980), the defendant held an
object to the back of a gas station attendant's neck and
threatened to shoot him. The jury heard testimony that the
defendant told the arresting officer that the object was a
toothbrush. A toothbrush, and no gun, was found on the
defendant's person when he was arrested. The defendant
requested a jury instruction on the affirmative defense to
robbery in the first degree - that the firearm displayed
"was not a loaded weapon from which a shot, readily
capable of producing death or other serious physical injury,
could be discharged" (Penal Law § 160.15 ) - and
asked that the lesser included offense of robbery in the
second degree be charged. The trial court denied both
requests, and submitted to the jury the charge of robbery in
the third degree as a lesser included offense.
appeal from his conviction of robbery in the first degree,
defendant Lockwood argued that, under the circumstances of
the case, it was reversible error for the trial court to
refuse his request to charge the jury regarding the
affirmative defense. This Court agreed with the defendant and
ordered a new trial, reasoning that "[w]ithout the
benefit of the requested charge, the jurors may well have
believed that defendant had committed the robbery with a
toothbrush, yet also believed that it was their duty to find
him guilty of robbery in the first degree because the
toothbrush which he displayed appeared to be a pistol"
(Lockwood, 52 N.Y.2d at 792).
we ruled that Lockwood should have been permitted the
requested instruction on the affirmative defense, our
decision contained an important observation. As we
subsequently noted, this was "that even if
defendant's statement that he committed the robbery by
holding a toothbrush in his coat pocket to simulate a gun
were accepted as true, he could still be guilty of displaying
what appears to be a firearm, and would succeed only in
reducing his liability from first degree robbery to second
degree" (People v Baskerville, 60 N.Y.2d 374');">60 N.Y.2d 374,
we emphasized that the precise nature of the object that a
defendant displays is not dispositive when analyzing whether
a defendant displayed what appeared to be a firearm. In
People v Baskerville (1983), the robber wrapped a
towel around one of his arms, raised the arm, and pointed it
at one of his victims, while threatening to kill her. There
was also testimony that a witness saw a black object inside
the towel, which she thought was a gun. We set out a two-part
test: the People must prove that (1) the defendant
"consciously display[ed] something that could reasonably
be perceived as a firearm, " and (2) it "appear[ed]
to the victim by sight, touch or sound that [the victim was]
threatened by a firearm" (Baskerville, 60
N.Y.2d at 381; accord William C. Donnino, Practice
Commentary, McKinney's Cons Laws of NY, Book 39, Penal
Law § 160.00 at 12) . We concluded that "[w]hen
both of these requirements are satisfied, ... the true nature
of the object displayed is, as concerns criminality,
irrelevant" (Baskerville, 60 N.Y.2d at 381
did not address whether a defendant may be guilty under the
same statute if he or she does not display any object that
itself gives the appearance of a gun, but merely covers a
hand in such a way that it seems to be holding or reaching
for a gun. Our decision in People v Lopez (1989)
then clarified the issue that had been left unresolved, and
held that the "object displayed" could be a hand.
Lopez, the defendant said "this is a stick
up" and demanded that the victim hand over a radio. The
victim testified that Lopez simultaneously "put his hand
in the right side of his vest 'as if he had a
gun'" (Lopez, 73 N.Y.2d at 218). The victim
surrendered the radio. A jury found Lopez guilty of robbery
in the first degree under Penal Law § 160.15 (4), but
the trial court set aside the verdict, concluding that there
was no evidence of displaying what appeared to be a firearm
because "there was no proof that when the defendant
placed his hand inside his vest he 'made the shape of any
object or that the victim saw any object displayed'"
(Lopez, 73 N.Y.2d at 218). The Appellate Division
reversed on the basis that although the display of what
appears to be a firearm "requires a display of something
that could reasonably be perceived as a firearm, there is no
requirement that the object... be anything other than the
defendant's hand" (People v Lopez, 135
A.D.2d 443, 443-444 [1st Dept 1987] [internal quotation
marks, citations, and brackets omitted]).
Court of Appeals affirmed. To sustain a conviction for
robbery in the first degree (Penal Law § 160.15 ),
"[t]he People must show that the defendant consciously
displayed something that could reasonably be perceived as a
firearm, with the intent of forcibly taking property, and
that the victim actually perceived the display"
(Lopez, 73 N.Y.2d at 220). A mere verbal threat is
insufficient. The Court held, however, that "the object
displayed need not closely resemble a firearm or bear a
distinctive shape, " and may be an object "held
inside a coat or otherwise obscured, " such as "[a]
towel wrapped around a black ...