People v. Robare
| Citation | 109 A.D.2d 923,486 N.Y.S.2d 393 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Roger Bruce ROBARE, Jr., Appellant. |
| Decision Date | 07 March 1985 |
| Court | New York Supreme Court Appellate Division |
Penelope D. Clute, Plattsburgh, for appellant.
Joseph W. Kelley, Clinton County Dist. Atty., Plattsburgh, for respondent.
Before KANE, J.P., and MAIN, MIKOLL, YESAWICH and HARVEY, JJ.
Appeal from a judgment of the County Court of Clinton County, rendered November 7, 1983, upon a verdict convicting defendant of the crimes of robbery in the first degree, attempted sodomy in the first degree and assault in the third degree.
From the evidence introduced by the prosecution, it appears that at approximately 9:00 P.M. on July 8, 1983 in the City of Plattsburgh, a young male was riding his bicycle along Route 9 on his way to visit his employer. Defendant came up behind him, knocked him off his bicycle and forced him to accompany defendant to a place behind the Army Reserve Center. The victim was directed to remove his sneakers, watch and school ring, and was ordered to remove his pants and shirt upon the threat of the use of a razor. Defendant then took his penis out and demanded that the victim perform a deviate sexual act. When the victim refused, defendant struck him in the mouth, knocking out two teeth, and left, taking with him the victim's sneakers, ring and watch.
On appeal, defendant's major contentions are addressed to the robbery and attempted sodomy convictions. He contends that there was insufficient evidence of robbery in the first degree to sustain the conviction and that the trial court erred in its charge in that respect. We agree with both contentions.
During its deliberation, the jury requested clarification of the trial court's charge on robbery. After reading the appropriate sections, the trial court continued, with the use of hypothetical examples, in the following words:
Robbery third, forcible stealing--a simple illustration is--a lady is standing on a street corner waiting for a bus and she has her handbag hanging down, somebody rushes by and grabs that handbag and runs away, forcible stealing. This is robbery in the third degree. Forcible stealing, period. Okay. We change the facts, simulate [sic ] standing on the street corner, bag in hand, along comes the same fellow, he not only grabs the bag but just to make sure that she didn't chase him, he kicks her where she never had a kick and she falls down and she has an injury, that is robbery second.
Now, the same lady, standing on the street corner with bag in hand, a fellow comes up, grabs for the woman's handbag.
She grabs back, she said, "Let go of that handbag, what do you think you are doing?" He says, "You let go of that handbag or I will fill you with holes like swiss cheese; and I have something to do it with"--such as this, that or the other thing. She lets go of the handbag. If you find there was a forcible stealing and the use or threatened use of physical force, then you would be justified in finding robbery first.
The trial court's illustration of robbery in the first degree was erroneous because it did not contain the necessary elements. As a general rule, "hypothetical illustrations should be avoided because of the likelihood that they may divert the jury" (United States v. Cassino, 2nd Cir., 467 F.2d 610, 619). Defendant objected to the charge, but the trial court failed to correct the error by subsequent instructions relative to this issue (see People v. Dean, 56 A.D.2d 242, 253, 392 N.Y.S.2d 134, affd 45 N.Y.2d 651, 412 N.Y.S.2d 353, 384 N.E.2d 1277). The error of the charge is revealed in the discussion of the next point.
Defendant was indicted for robbery in the first degree under Penal Law § 160.15(3), wherein the aggravating factor encompasses situations where a person "[u]ses or threatens the immediate use of a dangerous instrument". At the trial, the victim stated that defendant "threatened me with his razor blade, which I never saw". When asked if he ever saw a razor, the victim...
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