People v. York
| Decision Date | 30 November 1987 |
| Citation | 134 A.D.2d 637,521 N.Y.S.2d 531 |
| Parties | The PEOPLE, etc., Respondent, v. Ronnie P. YORK, Appellant. |
| Court | New York Supreme Court — Appellate Division |
John F. Middlemiss, Jr., Ronkonkoma (Gregory J. Neilon, of counsel), for appellant.
Patrick Henry, Dist. Atty., Riverhead (Glenn Green, of counsel), for respondent.
Before MOLLEN, P.J., and RUBIN, KOOPER and SULLIVAN, JJ.
MEMORANDUM BY THE COURT.
Appeal by the defendant from a judgment of the County Court, Suffolk County (Tisch, J.), rendered January 23, 1985, convicting him of robbery in the first degree (two counts), attempted robbery in the first degree (three counts), attempted robbery in the second degree, and unauthorized use of a vehicle, upon a jury verdict, and sentencing him to indeterminate terms of 10 to 20 years, 10 to 20 years, and 4 to 12 years imprisonment upon the two convictions of robbery in the first degree charged in the first and second counts of the indictment and the conviction of attempted robbery in the first degree charged in the third count of the indictment, respectively, to run concurrently with one another, and to indeterminate terms of 4 to 12 years, 4 to 12 years, 2 to 6 years and 2 to 6 years imprisonment on the convictions of attempted robbery in the first degree charged in the fourth and fifth counts of the indictment, attempted robbery in the second degree charged in the sixth count of the indictment and unauthorized use of a motor vehicle in the first degree charged in the seventh count of the indictment, respectively, to run concurrently with each other but consecutively with the concurrent sentence imposed upon the first three convictions.
ORDERED that the judgment is modified, on the law and as a matter of discretion in the interest of justice, by: (1) reducing the defendant's conviction of robbery in the first degree under the second count of the indictment to robbery in the third degree and vacating the sentence imposed thereon, (2) reducing the sentence imposed on the defendant's conviction of robbery in the first degree under count one of the indictment from 10 to 20 years to 5 to 15 years, and (3) reversing the defendant's conviction of unauthorized use of a motor vehicle in the first degree under the seventh count of the indictment, dismissing that count of the indictment and vacating the sentence imposed thereon; as so modified the judgment is affirmed, and the matter is remitted to the County Court, Suffolk County, for resentencing on the second count of the indictment.
The evidence adduced at trial, viewed in the light most favorable to the People (see, People v. Malizia, 62 N.Y.2d 755, 757, 476 N.Y.S.2d 825, 465 N.E.2d 364, cert. denied 469 U.S. 932, 105 S.Ct. 327, 83 L.Ed.2d 264; People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), was legally sufficient to establish that the defendant displayed what appeared to be a firearm during the commission of the robbery charged in count one of the indictment (see, Penal Law § 160.15[4]; People v. Baskerville, 60 N.Y.2d 374, 469 N.Y.S.2d 646, 457 N.E.2d 752).
We find, however, that the defendant's conviction of robbery in the first degree under count two of the indictment must be reversed. As this court has recently observed, " '[i]n order to support a conviction for robbery in the first degree under Penal Law § 160.15[4], the evidence adduced, when viewed in the light most favorable to the People, must establish beyond a reasonable doubt that during the course of the commission of the crime * * * the defendant displayed what appeared to be a firearm' " (People v. Carrington, 127 A.D.2d 677, 511 N.Y.S.2d 673, lv. denied, 69 N.Y.2d 1002, 511 N.E.2d 94, see also, People v. Baskerville, supra, 60 N.Y.2d at 381, 469 N.Y.S.2d 646, 457 N.E.2d 752; cf., People v. Adams, 69 N.Y.2d 805, 513 N.Y.S.2d 381, 505 N.E.2d 946). Further, "[i]n this regard, '[t]he defendant must consciously display something that could reasonably be perceived as a firearm with the intent of compelling an owner of...
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People v. Colon
...statements that a robber is armed with a gun” ( People v. Lopez, 73 N.Y.2d at 221, 538 N.Y.S.2d 788, 535 N.E.2d 1328;see People v. York, 134 A.D.2d 637, 638–639, 521 N.Y.S.2d 531 [1987],appeal dismissed72 N.Y.2d 868, 532 N.Y.S.2d 518, 528 N.E.2d 909 [1988] ). While such statements can give ......
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...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 ["mere use of words without some other affirmative ac......
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Taylor v. Rivera
...a weapon to the testifying victim, see, e.g., People v. Ray, 184 A.D.2d 596, 584 N.Y.S.2d 620 (2d Dep't 1992); People v. York, 134 A.D.2d 637, 521 N.Y.S.2d 531 (2d Dep't 1987); People v. Carrington, 127 A.D.2d 677, 511 N.Y.S.2d 673 (2d Dep't 1987), or in which the victim did not perceive th......
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...reasonably thought that the object displayed "could have been a gun". Thus, the instant case is in sharp contrast to People v. York, 134 A.D.2d 637, 638-39, 521 N.Y.S.2d 531, where there was no conscious display of the object with the intent that it be observed. Based on the foregoing, we c......