People v. Stephens
| Decision Date | 24 October 1983 |
| Citation | 468 N.Y.S.2d 31,97 A.D.2d 523 |
| Parties | The PEOPLE, etc., Respondent, v. Nathaniel STEPHENS, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Freda S. Nisnewitz, Brooklyn, for appellant.
Elizabeth Holtzman, Dist. Atty., Brooklyn (Barbara D. Underwood, Michael Gore and Karen Lorentz, Asst. Dist. Attys., Brooklyn, of counsel), for respondent.
Before LAZER, J.P., and GIBBONS, WEINSTEIN and BOYERS, JJ.
MEMORANDUM BY THE COURT.
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered July 16, 1975, convicting him of robbery in the first degree (two counts), robbery in the second degree, attempted robbery in the first degree (two counts) and attempted robbery in the second degree, upon a jury verdict, and imposing sentence.
Judgment modified, on the law, by reversing the convictions of robbery in the first degree (count one) and attempted robbery in the first degree (count seven), and vacating the sentences imposed thereon, and said counts of the indictment are dismissed. As so modified, judgment affirmed.
Defendant was charged under counts one and seven of the indictment, with robbery in the first degree and attempted robbery in the first degree by use or threatened use of a dangerous instrument (see Penal Law, § 160.15, subd. 3). He was also charged under counts two and six with the same crimes on the theory of "display[ing] what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm" (see Penal Law, § 160.15, subd. 4). Although evidence was adduced at trial showing that the codefendant displayed what appeared to be a gun, no evidence was adduced to show that the gun alleged to have been used was loaded and operable. Under these circumstances, as the People candidly concede, the proof was insufficient to convict defendant on counts one and seven of the indictment and these two counts cannot stand (see People v. Bonefont, 84 A.D.2d 844, 444 N.Y.S.2d 173; People v. Siler, 76 A.D.2d 938, 429 N.Y.S.2d 461; People v. Castaldo, 72 A.D.2d 568, 420 N.Y.S.2d 742). Nevertheless, the elements of robbery and attempted robbery in the first degree as charged in counts two and six were sufficiently established. Defendant's other arguments deal with unpreserved allegations of error and in view of the strong proof of guilt we decline to reach them.
To continue reading
Request your trial
-
People v. Wilson
...678, affd. 70 N.Y.2d 996, 526 N.Y.S.2d 432, 521 N.E.2d 439; People v. Seabrooks, 120 A.D.2d 691, 502 N.Y.S.2d 4; People v. Stephens, 97 A.D.2d 523, 468 N.Y.S.2d 31; People v. Bonefont, 84 A.D.2d 844, 444 N.Y.S.2d 173; People v Castaldo, supra; People v. Holmes, 71 A.D.2d 904, 419 N.Y.S.2d 6......
-
People v. Cotarelo
...People v. Lockwood, 52 N.Y.2d 790, 436 N.Y.S.2d 703, 417 N.E.2d 1244; People v. Lyde, 98 A.D.2d 650, 469 N.Y.S.2d 716; People v. Stephens, 97 A.D.2d 523, 468 N.Y.S.2d 31; People v. Royster, 91 A.D.2d 1074, 1075, 459 N.Y.S.2d 16; People v. Knowles, 79 A.D.2d 116, 120, 436 N.Y.S.2d 25; People......
-
People v. Lopez
...Pena, 50 N.Y.2d 400, 407-408, 429 N.Y.S.2d 410, 406 N.E.2d 1347; People v. Seabrooks, 120 A.D.2d 691, 502 N.Y.S.2d 4; People v. Stephens, 97 A.D.2d 523, 468 N.Y.S.2d 31; People v. Bonefont, 84 A.D.2d 844, 444 N.Y.S.2d 173; People v. Castaldo, 72 A.D.2d 568, 420 N.Y.S.2d 742; People v. Holme......
-
People v. Colavito
...without evidence indicating that the gun allegedly used during the course of the robbery was loaded and operable (People v. Stephens, 97 A.D.2d 523, 468 N.Y.S.2d 31; People v. Fwilo, 47 A.D.2d 727, 365 N.Y.S.2d The People argue, inter alia, that the jury could "infer that the gun functioned......