Opinion
1457 KA 14–00562
02-09-2018
The PEOPLE of the State of New York, Respondent, v. Ayotunji AKINLAWON, also known as Jerry McCullough, Defendant–Appellant.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
Memorandum:Defendant appeals from a judgment convicting him, upon a jury verdict, of robbery in the first degree ( Penal Law § 160.15 [4 ] ). A person is guilty of robbery in the first degree when he or she "forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he [or she] or another participant in the crime ... [d]isplays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm" (id. [emphasis added] ).
Viewing the evidence in light of the elements of the crime as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). Contrary to defendant's contention, a charge of robbery in the first degree under Penal Law § 160.15(4) does not obligate the People to prove that the object displayed was a loaded or an operable weapon, or that such object constituted a "firearm" within the meaning of section 265.00(3) (see People v. Lopez, 73 N.Y.2d 214, 220, 538 N.Y.S.2d 788, 535 N.E.2d 1328 [1989] ; People v. Saez, 69 N.Y.2d 802, 804, 513 N.Y.S.2d 380, 505 N.E.2d 945 [1987] ). Instead, the object displayed need only appear to be some type of firearm (see Lopez, 73 N.Y.2d at 220, 538 N.Y.S.2d 788, 535 N.E.2d 1328 ). As the Lopez Court elaborated, a "towel wrapped around a black object ..., a toothbrush held in a pocket ... or even a hand consciously concealed in clothing may suffice ... if under all the circumstances the defendant's conduct could reasonably lead the victim to believe that a gun is being used during the robbery" ( id. ). Indeed, so long as the object displayed appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm, " ‘the true nature of the object displayed is, as concerns criminality, irrelevant ’ " ( People v. Smith, 29 N.Y.3d 91, 96, 52 N.Y.S.3d 692, 75 N.E.3d 84 [2017], quoting People v. Baskerville, 60 N.Y.2d 374, 381, 469 N.Y.S.2d 646, 457 N.E.2d 752 [1983] [emphasis added] ). Here, it is undisputed that the robber displayed an object that appeared to be a firearm. Defendant's supposition that the object displayed might have been a BB gun is entirely consistent with the undisputed fact that the robber displayed an object that appeared to be a firearm (see People v. Howard, 92 A.D.3d 176, 178–180, 939 N.Y.S.2d 4 [1st Dept. 2012], affd 22 N.Y.3d 388, 981 N.Y.S.2d 310, 4 N.E.3d 320 [2013] ; People v. Stewart, 140 A.D.3d 1654, 1654–1655, 31 N.Y.S.3d 913 [4th Dept. 2016], lv denied 28 N.Y.3d 937, 40 N.Y.S.3d 365, 63 N.E.3d 85 [2016] ).
Defendant next contends that County Court erred in denying his request to charge the jury on the statutory affirmative defense to robbery in the first degree, to which a defendant is entitled if the object displayed "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 generally Lopez, 73 N.Y.2d at 219, 538 N.Y.S.2d 788, 535 N.E.2d 1328 ). We reject that contention. Even if, as defendant claims, the perpetrator displayed a BB gun during the robbery, a BB gun still qualifies as a "weapon which discharge[s] a shot ... readily capable of producing serious physical injury" ( People v. Richard, 30 A.D.3d 750, 753, 817 N.Y.S.2d 698 [3d Dept. 2006], lv denied 7 N.Y.3d 869, 824 N.Y.S.2d 614, 857 N.E.2d 1145 [2006] ; see People v. Padua, 297 A.D.2d 536, 539, 747 N.Y.S.2d 205 [1st Dept. 2002], lv denied 99 N.Y.2d 562, 754 N.Y.S.2d 214, 784 N.E.2d 87 [2002] ; see also United States v. Rosa, 507 F.3d 142, 160–161 [2d Cir. 2007] ). As the Third Department has recognized, a BB gun is readily capable of causing serious physical injury "if shot at close range at a person's eye or temple" ( People v. Perez, 93 A.D.3d 1032, 1035, 942 N.Y.S.2d 227 [3d Dept. 2012], lv denied 19 N.Y.3d 1000, 951 N.Y.S.2d 476, 975 N.E.2d 922 [2012]; see generally § 10.00[10] ). Thus, when the object displayed is a BB gun, as defendant claims it was here, "the affirmative defense [in section 160.15(4) ] comes into play only when it is demonstrated by a preponderance of the evidence that the [BB] gun was unloaded or inoperable " ( Padua, 297 A.D.2d at 539, 747 N.Y.S.2d 205 [emphasis added]; see Rosa, 507 F.3d at 160–161 ; cf. People v. Hall, 50 A.D.3d 1467, 1468, 856 N.Y.S.2d 402 [4th Dept. 2008], lv denied 11 N.Y.3d 789, 866 N.Y.S.2d 615, 896 N.E.2d 101 [2008] ; People v. Espinoza, 253 A.D.2d 983, 983, 680 N.Y.S.2d 122 [3d Dept. 1998] ; but see People v. Starks, 91 A.D.3d 975, 976, 937 N.Y.S.2d 323 [2d Dept. 2012], lv denied 18 N.Y.3d 998, 945 N.Y.S.2d 653, 968 N.E.2d 1009 [2012] ; People v. Layton, 302 A.D.2d 408, 408, 754 N.Y.S.2d 552 [2d Dept. 2003] ). Here, there is no reasonable interpretation of the evidence, even when viewed in the light most favorable to defendant, that the BB gun allegedly displayed was unloaded or inoperable, and the court therefore properly denied defendant's request to charge the affirmative defense (see People v. Morales, 36 A.D.3d 957, 958–959, 827 N.Y.S.2d 334 [3d Dept. 2007], lv denied 8 N.Y.3d 988, 838 N.Y.S.2d 491, 869 N.E.2d 667 [2007] ).
We have examined defendant's remaining contentions and conclude that none warrants modification or reversal of the judgment.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.