People v. Gordon
| 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 |
| Court | New York Supreme Court — Appellate Division |
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' 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 (). A conviction for robbery in the first degree cannot be support under that 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; People v. King, 13 A.D.2d 997, 216...
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... ... 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 overturned by the Court of Appeals in People v. Roden (21 N.Y.2d 810, 288 N.Y.S.2d 638, 235 N.E.2d 776), which held that an unloaded gun was ... ...
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... ... Prior to 1969, an aggravated robbery chargearmed with a gunrequired the People to prove beyond a reasonable doubt that a gun openly displayed 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 apprehended in possession of (or otherwise tied to) the still-loaded firearm. Accordingly, in 1969, the legislature amended New York's robbery ... ...
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... ... Prior to 1969, an aggravated robbery chargearmed with a gunrequired the People to prove beyond a reasonable doubt that a gun openly displayed 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 apprehended in possession of (or otherwise tied to) the still-loaded firearm. Accordingly, in 1969, the legislature amended New York's robbery ... ...