People v. Legrande
| Court | New York Supreme Court Appellate Division |
| Citation | 574 N.Y.S.2d 780,176 A.D.2d 351 |
| Parties | The PEOPLE, etc., Respondent, v. Aaron LEGRANDE, Appellant. |
| Decision Date | 30 September 1991 |
Page 780
v.
Aaron LEGRANDE, Appellant.
Second Department.
Page 781
Reid & Priest (Stephen H. Kinney, Michael R. Gordon and Stacey K. Edelbaum, of counsel), and Philip L. Weinstein (Barry Leiwant of counsel), New York City, for appellant (one brief filed).
Charles J. Hynes, Dist. Atty., Brooklyn (Jay M. Cohen, Monique Ferrell and Jonathan Frank, of counsel), for respondent.
Before MANGANO, P.J., and KUNZEMAN, MILLER and COPERTINO, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Fisher, J.), rendered November 14, 1988, convicting him of robbery in the first degree and grand larceny in the fourth degree, upon a jury verdict, and imposing sentence.
ORDERED that the judgment is reversed, as a matter of discretion in the interest of justice, and the matter is remitted to the Supreme Court, Kings County, for a new trial. The facts have been considered and are determined to have been established.
The evidence adduced at trial proved the defendant's guilt of robbery in the first degree beyond a reasonable doubt. In order to satisfy the "[d]isplays what appears to be a * * * firearm" element of Penal Law § 160.15(4), the evidence must establish that the defendant consciously displayed something which could reasonably be perceived as a firearm, with the intent of forcibly taking property from another, and that the victim actually perceived that display (see, People v. Lopez, 73 N.Y.2d 214, 220, 538 N.Y.S.2d 788, 535 N.E.2d 1328; People v. Baskerville, 60 N.Y.2d 374, 381, 469 N.Y.S.2d 646, 457 N.E.2d 752).
It is well settled that the victim need not actually see a handgun in order for the "display" requirement to be met. Rather, it suffices if the perpetrator, who positions his hand in a manner intended to convey the impression that he has a gun, displays what appears to be a firearm and if his victim perceives it as such (see, People v. Lopez, supra, 73 N.Y.2d at 220, 538 N.Y.S.2d 788, 535 N.E.2d 1328; People v. Weatherly, 144 A.D.2d 509, 534 N.Y.S.2d 17; People v. Smith, 142 A.D.2d 619, 620, 530 N.Y.S.2d 275; People v. Knowles, 79 A.D.2d 116, 436 N.Y.S.2d 25). Stated succinctly, the perpetrator must consciously display something that could reasonably be perceived as a firearm, with the intent of compelling an owner of property to deliver it up or for the purpose of preventing...
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