People v. Jenkins
| Decision Date | 07 April 1983 |
| Citation | 461 N.Y.S.2d 699,118 Misc.2d 530 |
| Parties | The PEOPLE of the State of New York v. Horace JENKINS, Defendant. |
| Court | New York Supreme Court |
Robert M. Morgenthau, Dist. Atty., New York County by Nancy Gold, Asst. Dist. Atty., New York City, for the People.
Caesar Cirigliano, Atty. for Legal Aid Society by Ruth Pickholz, New York City, for defendant.
When, in the course of a robbery, a person has an unseen object--which is believed to be a gun--pressed against the body, has the perpetrator "[d]isplay[ed] what appears to be a ... firearm" within the meaning of the robbery statutes (Penal Law, §§ 160.15[4] and 160.10[2b] )? Although such a fact pattern seems far from unique, the issue is one of first impression in this state.
The defendant, Horace Jenkins, was accused in a one-count indictment of robbery in the first degree. The charge is that, on February 27, 1982, in front of a boutique on West 34th Street, Manhattan, opposite Macy's Department Store, the defendant forcibly stole a wallet and money from one Claudette Brown and that, while committing the crime, he displayed what appeared to be a pistol (Penal Law, § 160.15[4] ).
The alleged facts of the case, pertinent to the present discussion, are simply and briefly stated. While the female complaining witness was gazing into a store window, she felt a hard object, with about a one-half inch diameter, being pushed forcibly into her right side. Admittedly, she never saw the object. At the same time, the perpetrator claimedly exclaimed, Thereafter, he removed Mrs. Brown's wallet from her shopping bag and walked away. Mrs. Brown followed the perpetrator, but ultimately lost him. Four days later, however, at the same location, the complainant noticed the defendant; summoned police; identified the defendant thereafter as her assailant; and occasioned defendant's arrest.
At the conclusion of the People's proof, defendant moved for a trial order of dismissal or, alternatively, to have the court dismiss the count of robbery in the first degree and substitute a charge of robbery in the third degree. The defense argued that nothing was displayed at all and that no pistol could have been displayed, within the intendment of the statute, by one who merely pushed against the victim something which could not be seen by her. Contrariwise, the People maintained that the particular facts of the case, especially the words allegedly spoken by the defendant, were encompassed by the charge.
The element of the crime of robbery here involved is that, in the course of the commission of the crime or of immediate flight therefrom, the defendant displayed what appeared to be a firearm. The prima facie tests for this element are: did the defendant display something and, if so, what did it appear to the complainant to be? Accordingly, the principal focus of the instant inquiry must be the legislative intent in the use of the word "displays". No definition is provided by the statutes.
Strict construction of the New York Penal Law has not been a viable alternative for many years. In conflict with popular opinion, the classic command of the common law for rigid interpretation of criminal statutes has not been the law of this State for, at least, a century! (See Penal Law 1965, § 5.00; Penal Law 1909, § 21; Penal Law 1881, § 11.) On the contrary, it has long been mandated merely that Penal Law provisions "be construed according to the fair import of their terms to promote justice and effect the objects of the law" (Penal Law, § 5.00). That well-established rule--whether observed or not--has always demanded a statutory construction which was designed to foster justice for the victims of crime, as well as the perpetrators, and to advance the warranted objectives of the law for the benefit of all citizens.
There is no indication that the Legislature intended the operational delineation of the word "display" to be confined to a solitary meaning. Instead, it would appear that the clear intendment was to afford the term its normal, rational, all-inclusive, dictionary equivalent.
In point of fact, such a definition encompasses a display not only to the sight, but also the mind by way of any of the senses. Every dictionary of substance describes the word "display" not solely as to show or to exhibit to the eye, but, in addition, to unfold, reveal or make apparent to the mind, or as a demonstration or manifestation to any one or more of the senses. One long-recognized and respected semantic authority specifically includes as a prime definition, "to spread before the view: exhibit to the sight or mind: give evidence of: show, manifest, disclose" (Webster, Third New Int. Dictionary [unabridged, 1964], p. 654).
Accordingly, to display what appears to be a firearm--particularly as it relates to the alleged acts of the defendant herein--can be defined simply (and also for purposes of augmenting the normal jury instructions on the subject element) as follows: A display can be to the eye or to the mind. To display an object means not only a visual display, but also one that can be felt. Moreover, a firearm need not actually have been seen by the witness so long as the actions of the defendant made it appear to the witness that the defendant had a firearm.
"Thus, conduct that falls within the plain, natural meaning of the language of a Penal Law provision may be punished as criminal" (People v. Ditta, 52 N.Y.2d 657, 660, 439 N.Y.S.2d 855, 422 N.E.2d 515). To define the term in any narrower fashion would elevate stilted form over practical substance and inflated technicality over basic reality.
Should the equivalent robbery of a blind person always be relegated to the least degree of that crime (robbery in the third degree) merely because the victim cannot actually see and identify the apparent firearm being employed?
Should muggers with guns be similarly rewarded because their modus operandi is usually a sneak attack from behind?
And, if apprehended and convicted, should those who prey upon their victims in the darkest recesses of streets and alleyways--so that if a firearm is used it cannot be seen but only felt against the body--be afforded an additional advantage in terms of maximum allowable punishment?
So too, in the present situation, should the crime be reduced two degrees because the object allegedly used in the robbery was only felt and not seen? Is there any real reduction in the fear and...
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People v. Cotarelo
...[Penal Law, § 160.15, subd. 4] that the firearm used was not a 'deadly weapon' [Penal Law, § 10.00, subd. 12] )" (People v. Jenkins, 118 Misc.2d 530, 533, 461 N.Y.S.2d 699). Stated succinctly, the affirmative defense set forth in Penal Law § 160.15(4) "affords the defendant an opportunity t......
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People v. Baskerville
...by the victim, i.e., it must appear to the victim by sight, touch or sound that he is threatened by a firearm (see People v. Jenkins, 118 Misc.2d 530, 461 N.Y.S.2d 699). When both of these requirements are satisfied, however, the true nature of the object displayed is, as concerns criminali......
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People v. Lopez
...approaches in the dark or from behind so that the victim may only feel or hear what appears to be a gun (see, e.g., People v. Jenkins, 118 Misc.2d 530, 461 N.Y.S.2d 699). Thus the display requirement has been construed broadly to cover a wide range of actions which might reasonably create t......
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State v. Muldrow, 25414.
... ... Other courts have held words unaccompanied by any corroborating action are not sufficient. See, e.g., People v. Parker, 417 Mich. 556, 339 N.W.2d 455 (1983); People v. Jenkins, 118 Misc.2d 530, 461 N.Y.S.2d 699 (1983); State v. Scherz, 107 Wash.App. 427, 27 ... ...