People v. Lopez

• Decision Date: 23 February 1989
• Parties: , 535 N.E.2d 1328 The PEOPLE of the State of New York, Respondent, v. Freddie LOPEZ, Appellant. The PEOPLE of the State of New York, Respondent, v. Hector MENDEZ, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 788

538 N.Y.S.2d 788

73 N.Y.2d 214, 535 N.E.2d 1328

The PEOPLE of the State of New York, Respondent, v. Freddie LOPEZ, Appellant.

The PEOPLE of the State of New York, Respondent, v. Hector MENDEZ, Appellant.

Court of Appeals of New York.

Feb. 23, 1989.

Lawrence K. Marks and Philip L. Weinstein, New York City, for appellant in the first above-entitled action.

Robert M. Morgenthau, Dist. Atty. of New York County (Michael Schwartz and Norman Barclay, New York City, of counsel), for respondent in the first above-entitled action.

Richard Ware Levitt, New York City, for appellant in the second above-entitled action.

Paul T. Gentile, Dist. Atty. of Bronx County (Lynn M. Talutis and Michael R. Gordon, Bedford Village, of counsel), for respondent in the second above-entitled action.

OPINION OF THE COURT

WACHTLER, Chief Judge.

In these two cases the defendants have been convicted of robbery in the first degree. The question common to the appeals is whether the evidence in each case is sufficient to prove that, during the course of the robbery, the defendant displayed what appears to be a firearm, the element necessary to elevate the crime to the first degree (Penal Law § 160.15[4] ). In each case the Appellate Division found the proof sufficient and the defendant appeals.

In People v. Lopez, the robbery took place on a Manhattan street in October 1984. The victim and two female companions were approached by the defendant and another man. The defendant said "this is a stick up" and demanded that the victim hand over the radio he was carrying. The victim testified that as the defendant announced the robbery he put his hand in the right side of his vest "as if he had a gun". When the victim surrendered his radio, the defendant and the other man entered a car driven by a third man and fled the scene.

The victim was acquainted with the defendant because they had played basketball together several years earlier. The day after the robbery the victim saw the defendant on the street and identified him to the police as the person who had held him up. The defendant was indicted for robbery in the first degree for displaying what appeared to be a firearm during the course of the robbery (Penal Law § 160.15[4] ), as well as robbery in the second degree on the theory that he had been aided by another person actually present (Penal Law § 160.10[1] ). After a jury trial the defendant was found guilty on both counts. However, on the defendant's motion, the court set aside the verdict on the robbery first degree count, concluding that there was "absolutely no evidence of displaying". The court noted that there was no proof that when the defendant placed his hand inside his vest he "made the shape of any object or that the victim saw any object displayed".

On cross appeals by the People and the defendant, the Appellate Division restored the conviction for robbery in the first degree and otherwise affirmed. The court held: "While the display of 'what appears to be' a firearm test requires a 'display [of] something that could reasonably be perceived as a firearm' (People v. Baskerville, 60 N.Y.2d 374, 381, 469 N.Y.S.2d 646, 457 N.E.2d 752), there is no requirement that the object need be anything other than the defendant's hand" (135 A.D.2d 443, 443-444, 522 N.Y.S.2d 145).

In People v. Mendez, the robbery occurred in The Bronx in June of 1985. The victim testified that he was walking toward the Hunt's Point subway station when he saw the defendant standing near a stoop where another man was sitting. As the victim passed, the defendant grabbed him from behind, pushed him against a wall and demanded that he give the defendant everything he had. The defendant then took the victim's watch, ripped a chain from his neck and removed $80 from his back pocket. The other man sat on the stoop watching the robbery with his right hand under his shirt. According to the victim, at one point during the robbery the defendant said to the man on the stoop "don't show him the gun" or "[don't] take out the gun". When the robbery was complete, both men fled.

The victim had seen the defendant on several occasions before the robbery, near a store where the victim was employed. He recognized him by his distinctive tattoos, including a set of lips tattooed on the defendant's neck. A few days after the robbery, while the victim was at work, he saw the defendant pass on the street outside the store and reported him to the police, who arrested him.

A jury found the defendant guilty of robbery in the first degree, and the Appellate Division affirmed, without opinion. 141 A.D.2d 1010, 530 N.Y.S.2d 731. On this appeal the defendant contends, as he did at the close of the People's case, that the evidence is insufficient to prove that he or his accomplice displayed what appeared to be a firearm. He therefore urges that the robbery conviction be reduced from first degree to third degree.

I.

The core requirement for all three degrees of robbery under the Penal Law is proof that the defendant forcibly stole property from another (Penal Law §§ 160.05, 160.10, 160.15). If, in addition, the defendant or another participant in the crime "[d]isplays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm", the offense is elevated to robbery in the first degree (Penal Law § 160.15[4] ). However, if the defendant proves by a preponderance of the evidence that the object displayed "was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury," the crime is reduced to robbery in the second degree (Penal Law § 160.15[4] ). Of course, if the evidence would not warrant a finding that the defendant or a confederate made such a display, and no other aggravating factor has been charged or proven, the forcible taking constitutes robbery in the third degree, the lowest robbery offense (Penal Law § 160.05).

The statutory scheme serves two primary purposes. First, it recognizes that the additional fear suffered by a robbery victim confronted by what appears to be a firearm aggravates the nature of the offense and warrants additional punishment (People v. Baskerville, 60 N.Y.2d 374, 381, 469 N.Y.S.2d 646, 457 N.E.2d 752, supra ). Secondly, it recognizes the difficulty of proving that an object displayed during a robbery, which appears to be a firearm capable of causing death or serious injury, was in fact a loaded, operable gun when it was not fired at the scene or recovered afterwards (People v. Baskerville, supra, at 381, 469 N.Y.S.2d 646, 457 N.E.2d 752). The statute assumes that the object consciously displayed as a firearm was what it appeared to be and places on the defendant the burden of showing that it was not, in which case he could only be convicted of the lesser, second degree offense (People v. Lockwood, 52 N.Y.2d 790, 436 N.Y.S.2d 703, 417 N.E.2d 1244).

Although the display element focuses on the fearful impression made on the victim, it is not primarily subjective. The People must show that the defendant consciously displayed something that could reasonably be perceived as a firearm, with the intent of forcibly taking property, and that the victim actually perceived the display (People v. Baskerville, supra, 60 N.Y.2d at 381, 469 N.Y.S.2d 646, 457 N.E.2d 752).

However, the object displayed need not closely resemble a firearm or bear a distinctive shape. In light of the purpose of the statutory scheme, the broad wording of the display element, and the obligation to construe the Penal Law fairly to carry out the legislative intent (Penal Law § 5.00), we have held that "the display of anything that appears to be such [i.e., a firearm], though held inside a coat or otherwise obscured, is covered by sections 160.10 and 160.15" (People v. Baskerville, supra, at 381, 469 N.Y.S.2d 646, 457 N.E.2d 752). A towel wrapped around a black object (People v. Baskerville, supra ), a toothbrush held in a pocket (People v. Lockwood, supra ) or even a hand consciously concealed in clothing may suffice (People v. Knowles, 79 A.D.2d 116, 436 N.Y.S.2d 25; cf., People v. Gilliard, 72 N.Y.2d 877, 532 N.Y.S.2d 358, 528 N.E.2d 510), if under all the circumstances the defendant's conduct could reasonably lead the victim to believe that a gun is being used during the robbery. Indeed, the victim's perception need not be visual, but may be limited to touch or sound (People v. Baskerville, supra, 60 N.Y.2d at 381, 469 N.Y.S.2d 646, 457 N.E.2d 752), as when the defendant 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 the impression in the mind of the victim that the robber is armed with a firearm (People v. Baskerville, supra, 60 N.Y.2d at 382, 469 N.Y.S.2d 646, 457 N.E.2d 752), but cannot be read so broadly as to include mere statements that a robber is armed with a gun. Informing a robbery victim that a gun is present or even threatening to shoot may be as frightening as displaying a firearm, but under these statutes it is the "display" of what appears to be a firearm, and not the mere threat to use one, which is required (compare, People v. Dodt, 61 N.Y.2d 408, 474 N.Y.S.2d 441, 462 N.E.2d 1159 [defendant's statement to victim that he had a gun in pocket sufficient under statute requiring threat of deadly physical force, Penal Law §§ 135.20, 135.25] ). The defendant's statements may give meaning to the actions (People v. Baskerville, supra, 60 N.Y.2d at 381, 469 N.Y.S.2d 646, 457 N.E.2d 752), but words alone will not constitute a display of what appears to be a firearm within the meaning of the first and second degree robbery statutes (see, People v. York, 134 A.D.2d 637, 521 N.Y.S.2d 531; see also, People v. Jenkins, supra, 118 Misc.2d at 534, 461 N.Y.S.2d 699 [...