People v. Simon

117 A.D.2d 980, 499 N.Y.S.2d 285, 1986 N.Y. App. Div. LEXIS 53218

Opinion

—Judgment unanimously reversed, on the law, and new trial granted. Memorandum: It was error for the court to refuse defendant’s request to charge robbery in the second degree as a lesser included offense of robbery in the first degree on the basis of evidence that the gun used in the robbery was not loaded. That evidence, provided by the People’s witnesses, afforded a reasonable basis for the jury to conclude that the firearm displayed during the robbery "was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged” (Penal Law § 160.15 [4]; see, CPL 300.50 [1], [2]; People v Willis, 56 NY2d 743, 744-745; People v Smith, 55 NY2d 888, 890). There is no requirement that evidence that the weapon was unloaded come from the defendant or defense witnesses rather than from prosecution witnesses. We have considered the other issues raised by defendant and find them lacking in merit. (Appeal from judgment of Monroe County Court, Scudder, J., at trial; Mark, J., on suppression hearing— robbery, first degree.) Present—Doerr, J. P., Denman, Green, O’Donnell and Schnepp, JJ.