People v. Lopez

New York Court of Appeals

Feb 23, 1989

Versions:73 N.Y.2d 214

535 N.E.2d 1328

538 N.Y.S.2d 788

1989 N.Y. LEXIS 203

Lead Opinion

OPINION OF THE COURT

Chief Judge Wachtler

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 Divisiоn 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 hе 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 degrеe 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 NY2d 374, 381), there is no requirement that the object need be anything other than the defendant’s hand” (135 AD2d 443, 443-444).

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 Apрellate Division affirmed, without opinion. 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.

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 "[displays 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 displаyed "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 forceable taking constitutes robbery in thе 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 NY2d 374, 381, 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). 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 NY2d 790).

Although the display element focuses on the fearful impression madе 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, at 381).

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 brоad 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). 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 AD2d 116; cf., People v Gilliard, 72 NY2d 877), if under all the circumstances the defendant’s conduct could reasonably lead thе 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, at 381), 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).

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 viсtim that the robber is armed with a firearm (People v Baskerville, supra, at 382), 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 NY2d 408 [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, at 381), 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 AD2d 637; see also, People v Jennings, supra, at 534 ["mere use of words without some other affirmative action appealing simultaneously to one or another of the victim’s actual senses” would be insufficient]).1

II.

In People v Lopez, where the defendant confronted the victim on the street, announced a "stickup” and placed his hand in his vest jacket as he demanded the victim’s radio, there was sufficient evidence that the defendant displayed what appeared to be a weapon within the meaning of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the statutes. The defendant’s sole contention is that the evidence is deficient because the victim "only saw appellant move his hand inside the jackеt, and [did not see] a gun or any other object or bulge that could reasonably have been perceived as a gun”.

The argument basically is that a hand cannot reasonably be perceived as a firearm; thus, unless the vest appears to conceal some other object or the hand is positioned under the vest in such a way as to suggest a firearm, the defendant cannot be said to have "consciously display[ed] something that could reasonably be perceived as a firearm” (People v Baskerville, supra, at 381). As noted, however, an object can be "displayed” without actually being seen by the victim even in outline (People v Baskerville, supra, at 381; People v Jenkins, supra). All that is required is that the defendant, by his actions, consciously manifest the presence of an object to the victim in such a way that the victim reasonably perceives that the defendant has a gun. Here, the victim testified that he heard the defendant announce a "stickup” and saw him place his hand in his vest "as if he had a gun”. By his gesture the defendant conspicuously and consciously conveyed the impression that he was reaching for something which, under the circumstances, the victim could reasonably conclude was a firearm. Thus, in this case, the evidence was sufficient to sustain the conviction for robbery in the first degree.2

III.

In People v Mendez, on the other hand, the conviction for first degree robbery cаnnot be sustained. Concededly, this defendant made no display during the robbery indicating that he had a firearm. What the People rely on is the fact that the man on the stoop had his hand under his shirt and that the defendant told him not to take out the gun.

A defendant may be held liable for the acts of "another participant” who displays what appears to be a firearm during the robbery (Penal Law § 160.10 [2]; § 160.15 [4]). Here, however, the man on the stoop did not actively рarticipate in the robbery, nor did he display a weapon or take any action indicating that he had one. On the contrary, throughout the robbery he simply sat on the stoop with his hand under his shirt, literally on the sidelines, immobile, inconspicuous and indifferent. Although his actions, more accurately viewed as inaction, indicate that he had no intention of interfering with the defendant, something more is required before he can be said to have also participated in the robbery and displayed what appeared to be a weapon, conspicuously and consciously. It is obvious that the defendant intended his reference to the man on the stoop to create the impression in the mind of the victim that the man was armed, and that the victim interpreted this as a threat. However, as noted, a mere threat without some display is insufficient to establish robbery in the first degrеe. Thus, the evidence only establishes that the defendant committed a forceable taking, and the conviction should be reduced to robbery in the third degree (Penal Law § 160.05) as the defendant contends.

Accordingly, in People v Lopez, the order of the Appellate Division should be affirmed. In People v Mendez, the order of the Appellate Division should be modified by reducing the conviction from robbery in the first degree to robbery in the third degree and the defendant should be resentenced (CPL 470.15 [2] [a]; 470.20 [4]; 470.40 [1]).

Notes

. In response to the dissenters’ discussion of subdivision (3), which is not in issue here, we would simply note that it is an open question in this court as to whether a gun would have to be loaded and operable to be considered a dangerous instrument under that subdivision. In People v Pena (50 NY2d 400), we affirmed a conviction where the defendant gestured and threatened to shoot, but the only dangerous instrument he was found to possess was a knife. In People v Holmes, (71 AD2d 904, affd 52 NY2d 976), where the defendant threatened to shoot but there was no proof that the gun was operable, the Appellate Division reversed the cоnviction and the only issue considered on the appeal to this court was the corrective action. In People v Colavito (126 AD2d 554, affd 70 NY2d 996), the Appellate Division affirmed a conviction where there was no proof that the gun was operable noting that the gun could have been used as a club, and we affirmed after concluding that the issue had not been preserved for our review.

. We note that robbery in the second degree is the approрriate offense when, in fact, the defendant has simply used his hand to create the impression he is armed with a gun (see, People v Knowles, 79 AD2d 116; cf., People v Gilliard, 72 NY2d 877). However, the burden is on the defendant to prove this as an affirmative defense at trial (People v Gilliard, supra).

Dissenting Opinion

Titone, J.

(dissenting in People v Lopez and concurring in People v Mendez). In People v Baskerville (60 NY2d 374), this court held that the "[d]isplay[ing] what appears to be a * * * firearm” element of first and second degree robbery (Penal Law § 160.15 [4]; § 160.10 [2] [b]) has both a subjective and an objective component. Further, the court stated in Baskerville that the objective compоnent has two subparts. First, "[t]he defendant must consciously ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍display something that could reasonably be perceived as a firearm” (60 NY2d, at 381, supra). Second, "the display must actually be witnessed in some manner by the victim” (id.). While alluding to this two-pronged objective analysis, the majority has substantially, and unjustifiably, diluted the showing necessary to establish the first prong. Accordingly, although I concur in the result in People v Mendez, I cannot subscribe to the majority’s rationale and, for the same reason, I dissent from its decision to affirm in People v Lopez.

Initially, it bears emphasis that the "[d]isplay[ing] what appears to be a * * * firearm” element is treated as an aggravating circumstance elevating the crime to first degree robbery not only to increase the penalty for putting the victim in fear for his or her life, but also to ease the People’s burden of proof in cases where no shot was fired and, for a variety of reasons, the weapon usеd in the crime was unavailable (People v Baskerville, supra, at 380-381, citing Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law § 160.15, at 205 [1975 ed]; see also, People v Hedgeman, 70 NY2d 533, 540-542). In such instances, it is impossible for the prosecution to prove that the displayed weapon was "loaded and operable” and was therefore an actual threat to the victim’s safety. Accordingly, the Legislature deemed it appropriate to treat the display of a firearm itself as the aggravating element and to place the burden on the defendant to mitigate culpability by demonstrating that the item displayed was incapable of causing harm (see generally, People v Felder, 39 AD2d 373, affd 32 NY2d 747, appeal dismissed 414 US 948; see also, People v Lockwood, 52 NY2d 790). By allowing for a reduction to second degree robbery upon a showing that the weapon either was not loaded or inoperable, however, the Legislature indicated that the true thrust of the first degree offense remains forceable stealing under conditions creating a genuine risk of death or serious physical injury (cf., Penal Law § 160.15 [1]).

Inasmuch as the "display” element оf first degree robbery already takes into account the practical difficulties often involved in proving the crime of armed robbery, its requirements should not be further diluted by constructions that blur the distinctions between the various aspects of the Baskerville test (60 NY2d, at 380-382, supra; see, People v Hedgeman, supra, at 540-541). Such constructions are offensive because they tamper with the balance that the Legislature struck between the defendant’s rights and the People’s interest in obtaining convictions аnd they give the prosecution an added advantage, even beyond what the Legislature intended.

By permitting a first degree robbery conviction on the basis of the facts proven in Lopez, the majority has drastically redefined the "display” element and, in the process, has stretched that element to encompass situations well beyond its intended reach, effectively eliminate its impact. While Baskerville specifically required that the defendant "consciously display something that could reasonably be perceived as a firearm” (60 NY2d, at 381, supra [emphasis added]), the majority vitiates that requirement by holding that "[a]ll that is required is that the defendant, by his actions, consciously manifest the presence of an object to the victim in such a way that the victim reasonably perceives that the defendant has a gun.” (Majority opn, at 222.) Thus, the majority has replaced the requirement that there be an actual display of some physical object appearing to be a gun (see, People v Lockwood, supra; People v Knowles, 79 AD2d 116) with the far less exacting requirement of some symbolic gesture, other than speech, conveying nothing more thаn an impression that the robber may have such a physical object.

The standard the majority has adopted permits satisfaction of the "display” element of first degree robbery with proof of facts that establish no more than a threat to use a weapon. Although the majority has emphatically eschewed the use of verbal threats as a means of establishing the "display” element, its conclusion that a gesture "conveying] the impression” that the defendant has a gun will suffice amounts to the same thing. In both instances, the victim’s fear is induced not by an object that is brandished, seen or felt, but rather by a mere communication, in verbal or nonverbal form.

I find this unwarranted reduction in the People’s burden of proof particularly objectionable because it authorizes convictions for first degree robbery on the basis of conduct that is at least one step removеd from the type of behavior for which the Legislature intended to impose the highest punishment available within the robbery article. Indeed, equating the "display” of a gun with a mere threatening gesture may prove, in the final analysis, to be even more pernicious than treating a verbal threat as an offense within Penal Law § 160.15 (4), since such gestures are generally more ambiguous than threatening words.

Even more disturbing, the majority has provided prosecutors ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍with а means of circumventing the requirements of Penal Law § 160.15 (3) by permitting first degree robbery convictions under Penal Law § 160.15 (4) upon proof of a mere threatening, gesture. Subdivision (3) of section 160.15 permits a conviction for first degree robbery if the prosecution can prove that the defendant "use[d] or threatened] the immediate use of a dangerous instrument”. It has been held that this subdivision requires proof of the defendant’s actual possession of a dangerous instrument and, in cases involving a gun, proof that the weapon was loаded and operable (see, People v Pena, 50 NY2d 400, 407-408; People v Seabrooks, 120 AD2d 691; People v Stephens, 97 AD2d 523; People v Bonefont, 84 AD2d 844; People v Castaldo, 72 AD2d 568; People v Holmes, 71 AD2d 904, affd on other grounds 52 NY2d 976; People v Johnson, 64 AD2d 907, affd on other grounds 48 NY2d 674; People v Early, 59 AD2d 912; People v Briggs, 52 AD2d 1053; cf., People v Colavito, 126 AD2d 554, affd on other grounds 70 NY2d 996). Thus, a mere threatening gesture suggesting the presence of a gun would not be sufficient to support a conviction for first degree robbery under subdivision (3). Under the majority’s new interpretation of subdivision (4), however, the same facts will support a conviction for first degree robbery under that subdivision, since the "threat” and "display” elements are now virtually indistinguishable and the language of subdivision (4) requiring proof only of "what apрears to be a * * * firearm” obviates the need to prove either that the defendant actually possessed a gun or that the gun was loaded and operable.

In sum, each subdivision of Penal Law § 160.15 was enacted to encompass different aggravating circumstances, with subdivision (2) addressed to mere possession of a loaded and operable firearm, subdivision (3) addressed to threats to use actually dangerous weapons of any type and subdivision (4) addressed to displays of objects resembling guns, whether or not they are actually dangerous. The distinctions between the subdivisions should not be blurred by diluting the showing required to establish one or more of their elements and thereby allowing conviction under one when the facts fit within, but fall slightly short of the elements of another (see, People v Briggs, supra). In this case, that is precisely what the majority has done by allowing a conviction for first degree robbery under subdivision (4) when the defendant’s aggravating conduct consists of no more than a threat without the additional element of an actual dangerous instrument, as would be required if he were prosecuted under subdivision (3).

Because the standard the majority has employed represents an unacceptable dilution of the standard previously applied in first degree robbery cases arising under Penal Law § 160.15 (4), I cannot concur. Instead, I would hold, consistent with People v Baskerville (supra) and the plain language of the statute itself, that the "display” element is not satisfied absent proof that "something,” be it a real gun, a toy gun or even a toothbrush or hand concealed in a pocket, has been brandished, pointed or poked at the victim. Because this test has not been met, reversal is required in both People v Lopez and People v Mendez, since in both cases there was no display and, in fact, there was nothing more than a mere gesture.*

Accordingly, for all of the foregoing reasons, I dissent from the majority’s affirmance in People v Lopez.

In People v Lopez: Order affirmed.

Judges Simons, Kaye and Bellacosa concur with Chief Judge Wachtler; Judge Titone dissents and votes to reverse in a separate opinion in which Judges Alexander and Hancock, Jr., concur.

In People v Mendez: Order modified by reducing the conviction of robbery in the first degree to robbery in the third degree and case remitted to Supreme Court, Bronx County, for resentence; and, as so modified, order affirmed.

Judges Simons, Kaye and Bellacosa concur with Chief Judge Wachtler; Judge Titone concurs in result in a separate opinion in which Judges Alexander and Hancock, Jr., concur.

The basis of the majority’s reversal in Mendez is somewhat unclear. Since the majority stresses that the person on the stoop who held his hand inside his shirt "did not actively participate in the robbery,” "simply sat on the stoop * * * literally on the sidelines, immobile, inconspicuous and indifferent” (majority opn, at 222), it appears that the majority’s holding is premised on a conclusion that there was insufficient proof ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of that individual’s complicity in the robbery to justify ascribing his potentially threatening gesture to defendant. There is no other principled ground for distinguishing the purported "display” in Mendez from the gesture that was found to be sufficient in Lopez. Indeed, if a mere gesture is sufficient to constitute a "display of what appears to be a * * * firearm” within the meaning of Penal Law § 160.15 (4), the facts in Mendez, which include both a potentially threatening gesture and a verbal reference to a gun, would seem to provide the stronger case for a first degree robbery conviction under the majority’s analysis.