People v. Iglesias
| Decision Date | 09 November 1972 |
| Citation | 40 A.D.2d 778,337 N.Y.S.2d 740 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Roberto IGLESIAS, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
M. L. Lipman, New York City, for respondent.
Horace P. Rowley, III, New York City, for defendant-appellant.
Before MARKEWICH, J.P., and NUNEZ, STEUER, TILZER and CAPOZZOLI, JJ.
Judgment, Supreme Court, Bronx County, rendered December 15, 1970 convicting defendant after a jury trial of the crimes of robbery in the first degree, grand larceny in the second degree, and possession of a weapon as a misdemeanor, and sentencing defendant to concurrent terms of up to five years on the robbery charge, up to four years on the grand larceny charge, and one year on the weapons charge is unanimously modified on the law by reducing the degree of crime, robbery in the first degree, to robbery in the second degree and by remitting the matter for resentence and as thus modified the judgment is affirmed.
The Trial Court submitted to the jury the crime of robbery in the first degree under Penal Law Sec. 160.15(3) which provides as follows:
'A person is guilty of robbery in the first degree when he forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime:
3. Uses or threatens the immediate use of a dangerous instrument.'
We find that such was error. The proof at the trial merely established that in the course of the robbery one of the defendants displayed a gun. There was no proof that the gun was loaded or that it was used. While the Court of Appeals in People v. Roden, 21 N.Y.2d 810, 288 N.Y.S.2d 638, 235 N.E.2d 776 concluded that an unloaded gun was a dangerous weapon within the meaning of former Penal Law Sec. 2124(1), the new Penal Law (160.15(3)) requires more than mere possession of the dangerous instrument to establish the crime of robbery in the first degree. Since all that was established was that a gun was displayed the Court should not have submitted robbery in the first degree to the jury. We note that subsequent to the commission of this crime Penal Law Sec. 160.15 was amended to add a fourth subdivision dealing with the situation where a gun is merely displayed.
Although the crime of robbery in the first degree was not established the evidence was legally sufficient to establish defendant's guilt of robbery in the second degree (Penal Law Sec....
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