People v. PaduaPeople v. Padua
Defendant and codefendant Alexis Nieves were indicted by a Bronx grand jury for robbery in the first degree, robbery in the second degree and related crimes arising out of а gunpoint robbery of a livery cab driver on January 13, 1998. Defendant and Nieves, who both displayed guns during the robbery, struck the driver with their guns, took money and jewelry from him, threatened to tie him up and kill him because he had seen their faces and repeatedly-punched and kicked him during the course of the robbery.
The robbery was interrupted, however, when Detective Crowley and Officer Taenzer observed defendant and Nieves punching and kicking the driver on the ground. When Detective Crowley approached the cab, defendant and Nieves fled. The driver told the officers that the two men had just robbed him and that they both had guns. Officer Taenzer got out of the policе car, chased Nieves and tackled him. Crowley used the police car to block defendant’s path, and, as Crowley got out of the car, he observed dеfendant throw a black object into the bushes. Officer Taenzer retrieved the object, which was a black
The court submitted four counts to the jury: robbery in the first degree (displayed what appears to be a firearm [Penal Law § 160.15 (4)]); robbery in the second degree (aided by another actually present [Penal Law § 160.10 (1)]); robbery in the second degree (displayed what aрpears to be a firearm, reduced from robbery in the first degree where affirmative defense proven [Penal Law § 160.15 (4); § 160.10 (2) (b)]); and attempted assault in the second degree (Penal Law §§ 110.00, 120.05 [2]).
The court charged the affirmative defense to robbery in the first degree under Penal Law § 160.15 (4) as follows: “[I]t is an affirmative defense that the pistol disрlayed by the defendants was not a loaded weapon from which a shot readily capable of producing death or other serious physical injury could be discharged. The burden of establishing such affirmative defense is placed by law upon the defendant and must be established by them to your satisfaction by a preponderance of the evidence.”
The court further explained that if the defendants meet this burden, a guilty verdict of robbery in the first degree is reduced to robbery in the second degree.
During deliberations, the jury sent a note requesting, inter alia, that the court reread the charges and give it “any evidence about whether or not the gun wаs loaded.” Defense counsel argued that the note indicated that the jury was trying to determine whether “this case is about a real gun or whether it is about guns that apрear to be pistols.” Thereafter, both defense counsel requested that the court instruct the jury that the BB gun in evidence “is not a firearm.” The prosecutor resрonded that defense counsel were “jumping to conclusions” and speculating, since the jury could have been considering the unrecovered weapon, not the BB gun. After hearing additional argument from both sides, the court stated that it would advise the jurors that they would have to clarify their inquiry.
The court told the jury that it could not answer its question regarding whether or not the gun was loaded, but instructed: “I spoke with the lawyers about that very question and
Defense counsel took no exception to this instruction. The cоurt then reinstructed the jury on the elements of robbery in the first degree and the affirmative defense. After the jury resumed deliberations, both defense counsel renewed thеir request that the court instruct the jury that the gun in evidence is not a firearm “as a matter of law.” The court denied the application.
The jury returned a verdict cоnvicting defendant and codefendant of robbery in the first degree (displayed), robbery in the second degree (aided) and attempted assault in the second degree.
On appeal, defendant argues that the trial court’s refusal to instruct the jury that a BB gun is not a firearm for purposes of the “display” element of first-degree robbery denied him his due process right to a fair trial.
Under CPL 310.30, a deliberating jury may request “further instruction or information with respect to the law, with respect to the content or substance of any trial evidence, or with respect to any other matter pertinent to the jury’s consideration of the case.” Presented with such a request, a trial court, in its discretion, must respond meaningfully to the jury’s inquiry. (People v Malloy,
When the adequacy of a trial court’s response to a jury’s inquiry is challenged on appeal, a reviewing court must consider the form of the jury’s question, whiсh may need to be clarified before it can be answered, the particular issue that the question addresses, the supplemental instruction that was actually given and any resulting prejudice to the defendant (id.; People v Almodovar,
We also note that, with respect to the charge of robbery in the first degree (displayеd), the People are not required to introduce into evidence the weapon used in the robbery; nor must they present evidence that the weapon wаs loaded or capable of being fired (see People v Harper,
In light of the above, the trial court properly rejected defendant’s request to charge the jury that a BB gun is not a firearm. Defendant’s proposed instruction was not responsive to the jury’s question and, quite possibly, was erroneous. As indicatеd, to convict on the charge of robbery in the first degree (displayed), it is sufficient that the object displayed appear to be a firearm, not actually bе one (People v Saez,
Accordingly, we conclude that the requested instruction was inappropriate under the circumstances and that the more prudent course was that taken by the trial justice, namely, аsking the jury to clarify their request. Concur — Tom, J.P., Buckley, Ellerin, Wallach and Gonzalez, JJ.
Notes
. The imitation pistol was admitted into evidence as a People’s exhibit at trial. No testimony was offered as to whether this pistol was loaded or operable.
. To the extent defendant’s argument raises a constitutional claim, it is unpreserved for appellate review because he never raised it below (see People v Iannelli,