People v. Gordon
| Court | New York Supreme Court Appellate Division |
| Citation | 19 A.D.2d 828,243 N.Y.S.2d 573 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Gerald GORDON, Appellant. |
| Decision Date | 07 October 1963 |
Page 573
v.
Gerald GORDON, Appellant.
Page 574
Gerald Gordon, pro se.
Edward S. Silver, Dist. Atty., Brooklyn (Wm. I. Siegel, Brooklyn, of counsel), for respondent.
Before BELDOCK, P. J., and KLEINFELD, CHRIST, BRENNAN and RABIN, JJ.
MEMORANDUM BY THE COURT.
In a coram nobis proceeding, defendant appeals from an order of the Supreme Court, Kings County, dated February 19, 1963, which denied without a hearing his application to vacate a judgment of the former County Court, Kings County, rendered April 19, 1958 after a jury trial, convicting him of robbery in the first degree, petit larceny and assault in the second degree, and imposing sentence upon him as a second felony offender.
The judgment of conviction was previously affirmed by this court (People v. Gordon, 8 A.D.2d 835, 190 N.Y.S.2d 625, affd. 7 N.Y.2d 942, 198 N.Y.S.2d 314; see also, People v. Pariser, 8 A.D.2d 825, 190 N.Y.S.2d 332, affd. 7 N.Y.2d 779, 194 N.Y.S.2d 46).
Order reversed on the law and the facts, and matter to the Criminal Term, Supreme Court, Kings County, for a hearing and for further proceedings not inconsistent herewith.
Prior to the defendant's arrest, a hearing took place in the former Magistrates' Court of the City of New York, in which two other accused men were the defendants. The minutes of such hearing demonstrate that there was a question concerning the 'operability' [19 A.D.2d 829] of a weapon used in the commission of the crime. At the defendant's trial the prosecutor apparently claimed that he (the prosecutor) had a gun which was used in the robbery; however, he never produced it and failed to make known to the defense or to the jury the facts as to the question concerning the condition of the gun. The suppression of those facts is now proffered as the basis for relief on this coram nobis application.
It further appears that the charge to the jury limited them to a consideration solely of robbery in the first degree under subdivision 1 of section 2124 of the Penal Law (armed with a dangerous weapon). A conviction for robbery in the first degree cannot be support under that
Page 575
subdivision where the weapon in question is inoperable and it is not shown that it was used as a club or in some other manner that would qualify it as a 'dangerous weapon' (People v. Dade, 15 A.D.2d 629, 222 N.Y.S.2d 154;...To continue reading
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People v. Knowles, No. 2000
...be deemed to fall only within the catch-all third degree robbery statute, section 2128 of the former Penal Law (see People v. Gordon, 19 A.D.2d 828, 243 N.Y.S.2d 573; People v. Dade, 15 A.D.2d 629, 222 N.Y.S.2d 154; People v. King, 13 A.D.2d 997, 216 N.Y.S.2d 755). This principle was overtu......
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People v. Smith
...during the crime was loaded and operable (see People v. Ahmed, 27 A.D.2d 729, 729, 277 N.Y.S.2d 444 [1st Dept.1967] ; People v. Gordon, 19 A.D.2d 828, 829, 243 N.Y.S.2d 573 [2d Dept.1963] ). That task proved to be immensely difficult if the defendant never fired a shot or was not quickly ap......
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People v. Smith
...during the crime was loaded and operable (see People v. Ahmed, 27 A.D.2d 729, 729, 277 N.Y.S.2d 444 [1st Dept.1967] ; People v. Gordon, 19 A.D.2d 828, 829, 243 N.Y.S.2d 573 [2d Dept.1963] ). That task proved to be immensely difficult if the defendant never fired a shot or was not quickly ap......
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People v. Elfe
...Page 117 may be discharged' (Penal Law, § 10.00, subd. 12; cf. People v. Davis, 29 A.D.2d 556, 285 N.Y.S.2d 719; People v. Gordon, 19 A.D.2d 828, 243 N.Y.S.2d 573). Since there was testimony that said gun was fully loaded when removed from the car, that it had been test fired, would dischar......
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People v. Knowles, No. 2000
...be deemed to fall only within the catch-all third degree robbery statute, section 2128 of the former Penal Law (see People v. Gordon, 19 A.D.2d 828, 243 N.Y.S.2d 573; People v. Dade, 15 A.D.2d 629, 222 N.Y.S.2d 154; People v. King, 13 A.D.2d 997, 216 N.Y.S.2d 755). This principle was overtu......
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People v. Smith
...during the crime was loaded and operable (see People v. Ahmed, 27 A.D.2d 729, 729, 277 N.Y.S.2d 444 [1st Dept.1967] ; People v. Gordon, 19 A.D.2d 828, 829, 243 N.Y.S.2d 573 [2d Dept.1963] ). That task proved to be immensely difficult if the defendant never fired a shot or was not quickly ap......
-
People v. Smith
...during the crime was loaded and operable (see People v. Ahmed, 27 A.D.2d 729, 729, 277 N.Y.S.2d 444 [1st Dept.1967] ; People v. Gordon, 19 A.D.2d 828, 829, 243 N.Y.S.2d 573 [2d Dept.1963] ). That task proved to be immensely difficult if the defendant never fired a shot or was not quickly ap......
-
People v. Elfe
...Page 117 may be discharged' (Penal Law, § 10.00, subd. 12; cf. People v. Davis, 29 A.D.2d 556, 285 N.Y.S.2d 719; People v. Gordon, 19 A.D.2d 828, 243 N.Y.S.2d 573). Since there was testimony that said gun was fully loaded when removed from the car, that it had been test fired, would dischar......