People v. Torres, 2013-05907
| Court | New York Supreme Court Appellate Division |
| Citation | 2015 N.Y. Slip Op. 06376,130 A.D.3d 1082,14 N.Y.S.3d 151 |
| Docket Number | 2013-05907 |
| Parties | The PEOPLE, etc., respondent, v. Davone TORRES, appellant. |
| Decision Date | 29 July 2015 |
130 A.D.3d 1082
14 N.Y.S.3d 151
2015 N.Y. Slip Op. 06376
The PEOPLE, etc., respondent
v.
Davone TORRES, appellant.
2013-05907
Supreme Court, Appellate Division, Second Department, New York.
July 29, 2015.
Lynn W.L. Fahey, New York, N.Y. (Elizabeth Budnitz of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Kayonia Whetstone of counsel), for respondent.
MARK C. DILLON, J.P., THOMAS A. DICKERSON, SHERI S. ROMAN, and HECTOR D. LaSALLE, JJ.
Opinion
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Latella, J.), rendered May 9, 2013, convicting him of robbery in the second degree (two counts) and assault in the second degree (two counts), after a nonjury trial, and imposing sentence.
ORDERED that the judgment is modified, on the law, by vacating the defendant's convictions of robbery in the second degree under counts three and four of the indictment, and assault in the second degree under count six of the indictment, vacating the sentences imposed thereon, and dismissing those counts of the indictment against the defendant; as so modified, the judgment is affirmed.
The defendant, and a codefendant, David Caraballo, were convicted after a nonjury trial of two counts of robbery in the second degree and two counts of assault in the second degree in connection with an incident that occurred on October 22, 2011. The complainant, Gary Stopa, an off-duty detective with
the New York City Police Department, testified that, while walking his dog in Far Rockaway, Queens, he was approached by a juvenile, who, brandishing a fake handgun resembling a Glock pistol, attempted to rob him. Stopa identified himself as a police officer and pointed his off-duty firearm at the juvenile, who dropped the fake gun and ran away, leaving the fake gun behind. Stopa placed
the fake gun in the front pocket of the sweatshirt he was wearing. He called the 911 emergency number to report the incident and was putting a leash on his dog when Caraballo approached him on a bicycle. While Stopa was on the telephone with the 911 operator, Caraballo got off of the bicycle and stood in front of Stopa, about a foot away, pointing a gun at Stopa and demanding that he hand over his off-duty firearm. A scuffle ensued between Stopa and Caraballo. During the scuffle, Stopa managed to break the slide off of the gun that Caraballo had pointed at him and dropped it on the ground.
The defendant, who had been lingering nearby, charged toward Stopa. According to Stopa, he then drew his off-duty firearm and identified himself as a police officer. The defendant reportedly hesitated, but then continued to charge at Stopa. The defendant and Caraballo wrestled with Stopa for his off-duty firearm. The gun went off and a bullet narrowly missed Stopa's face. Ultimately, Stopa was able to discharge his gun and the defendant and Caraballo ran off.
It was only after the incident and observing that the fake gun had been removed from his front pocket that Stopa realized that the gun which Caraballo had pointed at him was the same fake gun that the juvenile had dropped only moments before. Stopa testified that Caraballo had managed to remove the fake gun from Stopa's front pocket without Stopa's knowledge while he had been tending to his dog and speaking to the 911 operator. Stopa alleged that as a result of the incident, he suffered, inter alia, tremendous pain in his shoulder, which required multiple surgeries and limited the range of motion in his shooting arm. The defendant and Caraballo were indicted and charged with, inter alia, two counts of robbery in the second degree in connection with the fake gun and two counts of assault in the second degree.
We agree with the defendant that the evidence was legally insufficient to prove beyond a reasonable doubt his guilt of robbery in the second degree pursuant to Penal Law § 160.10(1) and (2)(a), based on the alleged robbery of the fake gun. Under these provisions, a person is guilty of robbery...
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