People v. Colavito

• Decision Date: 12 January 1987
• Citation: 126 A.D.2d 554,510 N.Y.S.2d 678
• Parties: The PEOPLE, etc., Respondent, v. Peter COLAVITO, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 678

510 N.Y.S.2d 678

126 A.D.2d 554

The PEOPLE, etc., Respondent, v. Peter COLAVITO, Appellant.

Supreme Court, Appellate Division,

Second Department.

Jan. 12, 1987.

Jeffrey A. Rabin, Brooklyn, for appellant.

Colavito, pro se.

Carl A. Vergari, Dist. Atty., White Plains (Richard L. Hecht and Maryanne Luciano, of counsel), for respondent.

Before MANGANO, J.P., and NIEHOFF, KOOPER and SPATT, JJ.

MEMORANDUM BY THE COURT.

Appeal by the defendant from a judgment of the County Court, Westchester County (Martin, J.), rendered December 14, 1984, convicting him of robbery in the first degree, robbery in the second degree, and grand larceny in the second degree, upon a jury verdict, and imposing sentence.

Justice Kooper has been substituted for the late Justice Gibbons (see, 22 NYCRR 670.2[c] ).

ORDERED that the judgment is affirmed.

The defendant was convicted, after trial, inter alia, of the crime of robbery in the first degree, as charged in the second count of the indictment, in that he forcibly stole property from the victim and during the course thereof "use[d] or threaten[ed] the immediate use of a dangerous instrument" (see, Penal Law § 160.15[3] ).

The evidence adduced at the trial was sufficient to establish that the defendant placed a loaded .32 caliber revolver in the victim's back during the robbery, and stated to the victim "keep your head down, don't turn around, I got a gun * * * if you turn around you've had it".

On the instant appeal, the defendant argues that the evidence was insufficient to warrant his conviction of robbery in the first degree since the People failed to prove that the loaded revolver which was the alleged dangerous instrument, was operable. According to the defendant, the gun was, therefore, not, "under the circumstances in which it is used, attempted to be used or threatened to be used * * * readily capable of causing death or other serious physical injury" (Penal Law § 10.00[13]; § 160.15[3] ).

It has been held, as the defendant argues, that a defendant who uses a gun in the course of a robbery normally may not be convicted of robbery in the first degree under Penal Law § 160.15(3) (use or threatened use of a dangerous instrument) without evidence indicating that the gun allegedly used during the course of the robbery was loaded and operable (People v. Stephens, 97 A.D.2d 523, 468 N.Y.S.2d 31; People v. Fwilo, 47 A.D.2d 727, 365 N.Y.S.2d 194).

The People argue, inter alia, that the jury could "infer that the gun functioned" from "the fact that appellant threatened the use of this loaded revolver during the commission of the robbery".

The People's argument has indeed been accepted by the Federal courts. In United States v. Marshall, (2nd Cir., 1970) 427 F.2d 434, 437 (emphasis supplied) the Court of Appeals for the Second Circuit stated:

"We * * * hold that the jury may infer that a gun used during a robbery was loaded in the absence of direct proof that the chambers contained bullets. The act of threatening others with a gun is tantamount to saying that the gun is loaded and that the gun wielder will shoot unless his commands are obeyed" (see also, United States v. Wardy, (2nd Cir., 1985) 777 F.2d 101, 105; United States v. Terry, (9th Cir., 1985) 760 F.2d 939, 942).

However, this approach has not been adopted by the courts of this State. In People v. Holmes, 71 A.D.2d 904, 419 N.Y.S.2d 614, affd. 52 N.Y.2d 976, 438 N.Y.S.2d 284, 420 N.E.2d 82, the evidence merely indicated that the defendant, during a robbery, held a gun to the victim and stated "[I]f you move, I'll have to shoot you". The defendant was convicted under a count in an indictment which tracked the language of Penal Law § 160.15(3) and charged him with robbery in the first degree in that he "used or threatened the immediate use of a dangerous instrument". This court in People v. Holmes (supra) reversed the defendant's conviction under that count.

Nevertheless, an affirmance is...