People v. Avilla

234 A.D.2d 45, 650 N.Y.S.2d 674, 1996 N.Y. App. Div. LEXIS 12294

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 5, 1996
• Status: Published

Opinion

—Order, Supreme Court, Bronx County (Ira Globerman, J.), entered March 4, 1996, which granted defendant’s motion to reduce count one of the indictment from attempted robbery in the first degree to attempted robbery in the third degree, unanimously reversed, on the law, defendant’s motion denied, count one of the indictment charging defendant with attempted robbery in the first degree reinstated and the matter remanded for further proceedings.

The complainant’s Grand Jury testimony, that he was approached by two men on the street, one of whom, the defendant, said "I have a gun and I’m gonna blast you, hand over your money”, and then reached inside his jacket in the area of his waist, at which point the complainant ran away and called the police, was legally sufficient to establish all the elements of the crime of attempted robbery in the first degree. By his statement and then his gesture of reaching into his jacket and "searching around his waist”, 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” (People v Lopez, 73 NY2d 214, 222; see also, People v Ruiz, 216 AD2d 63, affd 87 NY2d 1027). Concur—Rosenberger, J. P., Rubin, Ross, Tom and Andrias, JJ.