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People v. Simon

Appellate Division of the Supreme Court of New York, Fourth Department
Feb 21, 1986
117 A.D.2d 980 (N.Y. App. Div. 1986)

Opinion

February 21, 1986

Appeal from the Monroe County Court, Scudder, J., Mark, J.

Present — Doerr, J.P., Denman, Green, O'Donnell and Schnepp, JJ.


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; see, CPL 300.50, [2]; People v. Willis, 56 N.Y.2d 743, 744-745; People v. Smith, 55 N.Y.2d 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.


Summaries of

People v. Simon

Appellate Division of the Supreme Court of New York, Fourth Department
Feb 21, 1986
117 A.D.2d 980 (N.Y. App. Div. 1986)
Case details for

People v. Simon

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DALLAS SIMON, Appellant

Court:Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Feb 21, 1986

Citations

117 A.D.2d 980 (N.Y. App. Div. 1986)

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