People v. King
| Decision Date | 14 June 1961 |
| Parties | PEOPLE of the State of New York, Respondent, v. John KING, Appellant. |
| Court | New York Supreme Court — Appellate Division |
John L. Sullivan, New York City, for appellant.
Frank D. O'Connor, Long Island City, Harvey B. Ehrlich, Long Island City, of counsel, for respondent.
Before NOLAN, P. J., and CHRIST, PETTE, BELDOCK and KLEINFELD, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the County Court, Queens County, rendered June 23, 1959, convicting him, after a jury trial, of robbery in the first degree and sentencing him to serve a term of ten to fifteen years.
Judgment reversed on the law and the facts and a new trial ordered.
The evidence was inconclusive as to whether the pistol used by the defendant in the commission of the crime was capable of being fired, and consequently a question of fact was presented for determination by the jury as to whether the defendant was 'armed with a dangerous weapon' within the meaning of subdivision 1 of section 212 of the Penal Law (Cf. People v. Simons, 124 Misc. 28, 207 N.Y.S. 56; People v. DeWitt, 285 App.Div. 1157, 140 N.Y.S.2d 190; People v. McKenzie, 6 App.Div. 199, 200-201, 39 N.Y.S. 951, 952-953). It was error, therefore, for the trial court to refuse to charge the jury with respect to the lesser degrees of the crime of robbery (cf. People v. Musenden, 308 N.Y. 558, 561-562, 127 N.E.2d 551, 552-553).
Defendant admitted that he stole the money in question with the use of the pistol. All the elements of the crime of robbery in the first degree were proved because the record presented ample evidence that the pistol was capable of being fired at the time of the robbery. Therefore, it was not error to refuse to charge the jury with respect to the lesser degrees of the crime.
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