People v. Bynum

125 A.D.2d 207, 509 N.Y.S.2d 321, 1986 N.Y. App. Div. LEXIS 62484

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 9, 1986
• Status: Published

Opinions

— Judgment, Supreme Court, New York County (Luis M. Ñeco, J.), rendered on July 15, 1983, convicting defendant of robbery in the second degree and sentencing him to a term of from 7 to 14 years’ imprisonment, is affirmed.

At trial, the People’s evidence established that, on the night of February 15, 1983, Roxanne Eldred was confronted by defendant in the vestibule of her Greenwich Village apartment building. Concealing what Ms. Eldred described as "a round object * * * maybe cylindrical” in his jacket pocket, defendant said to her: "I have a lethal weapon in here. You are making too much noise. I don’t want to have to use this.” On cross-examination, Ms. Eldred further clarified the nature of the encounter.

"Q. The coat you said this man has, you stood up and demonstrated with his right hand in his pocket it was pointed out this way, correct?

"A. Yes.

"mr. smith: For the record, I am holding my coat up with my elbow bent parallel to the ground.

"the court: Let the record so note.

"Q. That is the way you said the man demonstrated to you?

"A. You are holding your coat like this. He was pointing it at me.

"Q. I am pointing my coat at you, but that is about the way you said—

"A. He wasn’t holding it up like this either. It was lower. More hip level.

"Q. You never saw his hand or anything in the hand, the right hand, am I correct?

"A. No, because it was in his pocket.

"Q. At all times?

"A. Yes.”

Defendant took Ms. Eldred’s wallet and left the scene. Apprehended by the police a few blocks away, he was searched, and a screwdriver was recovered from his pocket.

On appeal, defendant contends that an essential element of the crime of robbery in the second degree — that in the course of forcibly stealing property, the perpetrator "displays what appears to be a pistol, revolver * * * or other firearm” — has not been established by sufficient proof. We disagree.

In People v Baskerville (60 NY2d 374, 380-381), the Court of Appeals held that a robber who holds and uses a black object covered by a towel in such a manner as to give his victim the impression that he is threatening him with a gun "[displays what appears to be a * * * firearm” within the meaning of both Penal Law §§ 160.15 and 160.10. These two sections define the two highest degrees of the crime of robbery, the only distinction between them, relevant here, being the operability of the weapon.

* In language which appears to us dispositive of this appeal, the court wrote (pp 380-381): "[T]he Legislature has denominated the display of 'what appears to be’ a firearm an aggravating factor which increases the degree of the crime over forcible stealing without such a display (Penal Law, § 160.05). The apparent justification for differentiating the situations is the difficulty of proving when no shot was fired that what appeared to be a weapon was in fact a weapon (Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 160.15, p 205) and the effect upon the victim put in fear of his or her life by the display of what appeared to be a weapon. Bearing in mind that provisions of the Penal Law are to be 'construed according to the fair import of their terms to promote justice and effect the objects of the law’ (Penal Law, § 5.00) and the Legislature’s purpose in increasing the penalty for displaying what appears to be a firearm, we conclude that display of anything that appears to be such, though held inside a coat or otherwise obscured, is covered by sections 160.10 and 160.15.” (Emphasis added.)

The dissent would have it that the sine qua non of a conviction under these sections is evidence directly from the mouth of the victim that when confronted he was convinced his assailant was armed with a firearm. We do not read either the statute or the case law in such a restrictive manner. A robbery victim is not, in our view, required to call a robber’s bluff, in order to allay any lingering uncertainty, before the armed offense is made out. On the contrary, the victim may resolve any doubts in favor of the risk presented, and if, as here, the jury finds beyond a reasonable doubt that the victim submitted to circumstances designed by the perpetrator to convey the impression that he was in possession of a firearm and meant to use it, that is sufficient to sustain the firearm display element of the crime as a matter of law. In Baskerville (supra, p 381), the Court of Appeals went on to say that the test is not "primarily subjective.” All that is necessary is satisfaction of a two-tiered test: (1) "defendant must consciously display something that could reasonably be perceived as a firearm with the intent of compelling an owner of property to deliver it up” and (2) "it must appear to the victim by sight, touch or sound that he is threatened by a firearm” (supra, p 381). When both of these requirements are satisfied, "the true nature of the object displayed is, as concerns criminality, irrelevant.” (Supra, p 381.) Here there is no question that defendant’s conduct meets the first requirement. As to the second it may be shown not only by testimonial recollection but also, as here, by a jury evaluation of the totally submissive conduct of the victim in yielding to the threatening tableau that defendant had so consciously contrived (see, People v Lockwood, 52 NY2d 790, where the weapon held by the robber to the back of the victim’s neck may have been a toothbrush).

We have examined the other claims of error advanced by defendant and find them without merit. Concur — Sullivan, Fein, Milonas and Wallach, JJ.

It is somewhat ironic that on the proof presented here the People could have sustained a conviction for robbery in the first degree under Penal Law § 160.15 (3): "Uses or threatens the immediate use of a dangerous instrument”. The screwdriver recovered would qualify as a dangerous instrument under Penal Law § 10.00 (13).