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People v. Smith

New York Court of Appeals

March 28, 2017

The People & c., Respondent,
v.
Charles Smith, Appellant.

          Craig A. Stewart, for appellant.

          William H. Branigan, for respondent.

          FAHEY, J.

         Here we 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 [1989]). 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 firearm.

         I.

         Defendant was charged with attempted robbery in the first degree (Penal Law §§ 110.00 [attempt], 160.15 [4] ["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 degree.

         At 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 was recovered.

         The 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.

         Defendant 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."

         The 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.

         On 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]).

         A Judge of this Court granted defendant leave to appeal (26 N.Y.3d 1043 [2015]). We now affirm.

         II.

         A 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."

         The 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 [1980]; see also Mem in Support, Bill Jacket, L 1969, ch 1012, at 3).

         Defendant's 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.

         III.

         The controlling precedent is People v Lopez. Nevertheless, a review of the background predating Lopez is informative.

         In 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 [4]) - 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.

         On 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).

         Although 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, 381 [1983]).

         Later, 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) [1]. 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 [citation omitted]).

         Baskerville 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.

         In 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]).

         The Court of Appeals affirmed. To sustain a conviction for robbery in the first degree (Penal Law § 160.15 [4]), "[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 ...


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