People v. Brown
| Decision Date | 25 February 1985 |
| Citation | 485 N.Y.S.2d 812,108 A.D.2d 922 |
| Parties | The PEOPLE, etc., Respondent, v. Kenneth BROWN, a/k/a Kenneth Wright Brown, a/k/a Kenneth Burke, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Joseph A. Lichtenthal, White Plains, for appellant.
Carl A. Vergari, Dist. Atty., White Plains (Michael G. Testone, Jr. and Richard E. Weill, White Plains, of counsel), for respondent.
Before TITONE, J.P., and O'CONNOR, RUBIN and LAWRENCE, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the Supreme Court, Westchester County, rendered July 30, 1981, convicting him of robbery in the first degree, upon a jury trial, and imposing sentence.
Judgment affirmed.
Defendant was charged in the first count of a five-count indictment with robbery in the first degree in that he aided and abetted and acted in concert with another in forcibly stealing property from one Beatrice Bocca, and in the course of committing the crime and in immediate flight therefrom, displayed what appeared to be a handgun (Penal Law §§ 20.00, 160.15).
Based upon the record, we find no merit to defendant's contention that the prosecution failed to establish the crime of robbery in the first degree because it failed to introduce the weapon used in the robbery into evidence, or to present evidence that the weapon was loaded or capable of being fired. Penal Law § 160.15merely requires the prosecution to prove that the defendant or another participant displayed what appeared to be a pistol, revolver or other firearm. Contrary to defendant's assertions, it was incumbent upon defendant to prove, as an affirmative defense, that such weapon was unloaded or incapable of being fired. No such proof was offered by him (see generally People v. Clark, 41 N.Y.2d 612, 616-617, 394 N.Y.S.2d 593, 363 N.E.2d 319, cert. denied 434 U.S. 864, 98 S.Ct. 195, 54 L.Ed.2d 138; 2 CJI PL 160.15pp. 950-954; Hechtman, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 39, Penal Law § 160.15, p. 205).
Additionally, there is sufficient evidence in the record of defendant's active participation in the commission of the crime to support the jury's finding of guilt (Penal Law § 20.00; People v. Brathwaite, 63 N.Y.2d 839, 842, 482 N.Y.S.2d 253, 472 N.E.2d 29).
Moreover, the trial court properly permitted evidence of defendant's attempted flight from the police to be introduced (see People v. Yazum, 13 N.Y.2d 302, 304, 246 N.Y.S.2d 626, 196 N.E.2d 263; cf. People v. Irvin, ...
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