People v. Cruell

Appellate Division of the Supreme Court of New York

People v. Cruell

163 A.D.2d 411, 558 N.Y.S.2d 133, 1990 N.Y. App. Div. LEXIS 8868

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 9, 1990

StatusPublished

Cited by2 cases

This text of 163 A.D.2d 411 (People v. Cruell) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Cruell, 163 A.D.2d 411, 558 N.Y.S.2d 133, 1990 N.Y. App. Div. LEXIS 8868 (N.Y. Ct. App. 1990).

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Opinion

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Naro, J.), rendered May 26, 1987, convicting him of robbery in the first degree (two counts) and robbery in the second degree (two counts), upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant asserts that the verdict rejecting his affirmative defense that the gun he used to commit the robberies was inoperable was against the weight of the evidence. We disagree. The defendant has the burden of establishing the affirmative defense by a preponderance of the evidence (Penal Law § 25.00 [2]). Here, the evidence was insufficient to establish that the gun was inoperable at the time of the crime (see, e.g., People v Cotarelo, 71 NY2d 941). At best, the evidence established only that the weapon was inoperable five days after the crime. Indeed, the weapon, which showed evidence of having been fired, was recovered along with three cartridges from the car the defendant had been driving on the date of his [412]*412arrest. Mangano, P. J., Bracken, Rubin and Rosenblatt, JJ., concur.

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Appeal by the defendant from a judgment of the Supreme Court, Queens County (Naro, J.), rendered May 26, 1987, convicting him of robbery in the first degree (two counts) and robbery in the second degree (two counts), upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

The defendant asserts that the verdict rejecting his affirmative defense that the gun he used to commit the robberies was inoperable was against the weight of the evidence. We disagree. The defendant has the burden of establishing the affirmative defense by a preponderance of the evidence (Penal Law § 25.00 [2]). Here, the evidence was insufficient to establish that the gun was inoperable at the time of the crime (see, e.g., People v Cotarelo, 71 NY2d 941). At best, the evidence established only that the weapon was inoperable five days after the crime. Indeed, the weapon, which showed evidence of having been fired, was recovered along with three cartridges from the car the defendant had been driving on the date of his [412]*412arrest. Mangano, P. J., Bracken, Rubin and Rosenblatt, JJ., concur.

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Bluebook (online)

163 A.D.2d 411, 558 N.Y.S.2d 133, 1990 N.Y. App. Div. LEXIS 8868, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-cruell-nyappdiv-1990.

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