People v. Brown
| Decision Date | 09 July 2010 |
| Docket Number | No. 10–0476.,10–0476. |
| Parties | The PEOPLE of the State of New York, v. Walter BROWN, Defendant. |
| Court | New York County Court |
OPINION TEXT STARTS HERE
William J. Fitzpatrick, Esq., District Attorney of Onondaga County, Keri Armstrong, Esq., of Counsel, for the People.
Donald Kelly, Esq., for the Defendant.
The Defendant has made a motion pursuant to Criminal Procedure Law Section 210.30 to Inspect the Grand Jury Minutes in support of this Indictment upon the grounds of alleged insufficiency.
Upon a Motion to Inspect the Grand Jury Minutes and Motion to Dismiss the Indictment, the Court must examine these minutes in order to determine whether there was competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof (see, People v. Warner–Lambert Co, 51 N.Y.2d 295, 298;People v. Forde, 153 A.D.2d 466). In context of the Grand Jury Proceedings, legally sufficient means prima facie evidence, not proof beyond a reasonable doubt (see, People v. Mayo, 36 N.Y.2d 1002;People v. Brewster, 100 A.D.2d 134, 139–141, aff'd 63 N.Y.2d 419;People v. McCarter, 63 N.Y.2d 419;People v. Puma, 97 A.D.2d 740).
In evaluating the sufficiency of the evidence considered by the Grand Jury as presented by the People, the Court is required to determine whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant a conviction by a Petit Jury (see, People v. Jennings, 69 N.Y.2d 103, 114;People v. Galatro, 84 N.Y.2d 160;People v. Swamp, 84 N.Y.2d 725;People v. Nunex–Mezon, 168 A.D.2d 991 (4th Department 1990). The motion should be granted upon a clear showing of insufficiency with the burden of proof resting on the defendant (see, People v. Howell, 3 N.Y.2d 672, 675).
Measured by the foregoing propositions, the Court finds that the evidence before the Grand Jury relative to the single count of the Indictment is legally insufficient within the mandates of Criminal Procedure Law Section 190.65(1).
The defendant is charged in the indictment with having committed a single count of Robbery in the Third Degree in violation of Penal Law 160.05, in that it is alleged:
“Walter Brown, on or about the 9th day of April, 2010, at the City of Syracuse, in this County, forcibly stole approximately One–Hundred and Forty Dollars (140.00) in United States currency and bait money from Nellisha Gregory, an employee of Bank of America.”
Under our Penal Law, Robbery in the Third Degree is defined as follows:
“A person is guilty of Robbery in the Third Degree when he forcibly steals property.”
Our Penal Law 160.00 further generally defines Robbery as follows:
“Robbery is forcible stealing. A person forcibly steals property and commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of:
1. Preventing or overcoming resistance to the taking of property or to the retention thereof immediately after the taking; or
2. Compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.”
In order to establish a Robbery in the Third Degree under this theory, the People must establish in this presentment that in the course of committing a larceny the defendant used, or threatened to use the immediate use of, physical force upon another person for the purpose of preventing or overcoming resistance to the taking or compelling another person to deliver up the property.
The Court of Appeals in People v. Woods, 41 N.Y.2d, 279 stated at page 281:
“The People must show not only the taking of the property, but that the taking was accomplished by means of the use or threatened immediate use of physical force.”
While the Court in Woods found that there was ample evidence that the defendant had resorted to the use of threats of the immediate use of physical force from the nature of the statements made to the victim during the course of the transaction, the Court went on to comment generally on the nature and quality of statements and the conduct of a defendant that may constitute the threatened immediate use of physical force.
The Court in Woods stated at page 283:
“To suggest that the threatening words, if any there be, must in and of themselves express the immediacy of the physical force is to craft an added and unjustified requirement onto the statute ... The statute does not require the use of any words whatsoever, but merely that there must be a threat, whatever its nature, of the immediate use of physical force.”
The Court in People v. Mosley, 59 AD3d, 961, consistent with the holding in Woods regarding the nature of the defendant's statements and/or conduct that constitutes a threat of the immediate use of physical force, stated at page 961:
“All that is necessary is that there be a threatened use of force ... which may be implicit from the defendant's conduct or gleaned from a view of the totality of the circumstances (People v.. Rychel, 284 AD2D 662, 663 (2001; see Penal Law 160.00; People v.. Woods, 41 N.Y.2d 279, 282–289 (1977).”
The Court in Mosely then states at page 962:
“The People presented evidence from which defendant's threatened use of force could be implied, i.e., the testimony of the bank employees to whom defendant handed a note upon arriving at the respective banks.”
Similarly, the case of People v. Zagorski, 135 A.D.2d, 594 involved a bank robbery case wherein the defendant, upon entering the bank wearing a ski mask, announced, “this is a holdup-everybody stay calm, nobody will be hurt”, while taking the money from the tellers stated, “do as I say and nothing will happen”. The Court in Zagorski, under the facts and circumstances of that case, held that a person is guilty of Robbery in the Third Degree only if the crime involved a threat of the immediate use of physical force” (citing Penal Law 160.00; 160.05).
The Court in Zagorski found that the obvious implications of a remark such as “do as I say and nothing will happen” is that, should the speaker not be obeyed, something untoward would in fact happen and that in light of these remarks and the circumstances of the case it was not unreasonable to find that the defendant was fully...
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