Summary
holding that robber displays a weapon by putting his hand inside his jacket and asking victim if it would "make a difference" if he had a gun
Summary of this case from Moses v. ComOpinion
March 5, 1992
Appeal from the Supreme Court, Bronx County (Herbert Shapiro, J.).
Evidence at trial was that defendant accosted the complainant on the street, robbed him of his money, forced him to assist defendant in burglarizing the complainant's apartment, and then forced him to accompany defendant and an accomplice on an automobile ride to a Bronx location where defendant directed the complainant to assist in the exchange of the complainant's television set for what appeared to be drugs. When defendant's initial demand for money was rebuffed by the complainant, defendant put his hand inside his jacket pocket and asked if it would "make a difference" if he had a gun. Thereafter, defendant kept his hand in his pocket as he gave orders to the complainant. Believing that defendant had a gun, and fearing for his life, the complainant complied with defendant's demands.
Contrary to defendant's claim on appeal, defendant's reference to a gun, combined with his demands upon the complainant while keeping his hand in his jacket pocket, constituted sufficient evidence of a display of what appeared to be a firearm, to support that element of both robbery in the first degree and burglary in the first degree (see, e.g., People v Lopez, 73 N.Y.2d 214). The same words and conduct sufficed to establish the threatened use of deadly physical force element of kidnapping in the second degree (see, e.g., People v Dodt, 61 N.Y.2d 408, 414-415).
As the robbery was completed at the time the personal property was deposited in the automobile driven by defendant's accomplice, the kidnapping charge is separate and distinct from the robbery charge. Thus defendant's claim, raised for the first time on appeal, that the kidnapping charge should be merged with the robbery count as incidental thereto and inseparable therefrom, is meritless (see, e.g., People v Epps, 160 A.D.2d 171, lv denied 76 N.Y.2d 734).
We have considered defendant's additional and alternative claims and find them to be without merit.
Concur — Murphy, P.J., Rosenberger, Ellerin and Kassal, JJ.