CJI Charge on Robbery in the First Degree Fails to Alert Jury of Requirement of Actual Possession

Counsel needs to be aware that the the CJI charge for PL § 160.15 (3) is deficient and that failure to object to its language may result in a defendant being convicted on legally insufficient evidence.

The CJI charge for PL § 160.15 (3) is as follows

“Under our law, a person is guilty of Robbery in the First Degree when that person forcibly steals property and when, in the course of the commission of the crime [or of immediate flight therefrom], that person [or another participant in the crime] uses or threatens the immediate use of a dangerous instrument.”

This charge tracks the statutory elements. In 1980, the Court of Appeals held that although the statute (PL § 160.15 (3)) “is not explicit in that regard...the jury [considering such as charge is] required to find that [the defendant] actually possessed a dangerous instrument at the time of the crime. People v. Pena, 50 NY2d 400 [1980].

Yet, in People v Ford (__ NY3d __, 2008 NY Slip Op 09856 [2008]) a 4-3 decision rendered on December 17, 2008, the Court held that where the trial court instructed the jury, pursuant to the above quoted language from the CJI, the instruction, which did not use the term "actual possession," failed to

convey that requirement to the jury. Although the jury instruction parroted the statute, we have previously noted that the ‘actual possession’ requirement is not explicit in the statute, but rather is based on judicial interpretation in decisional law.

Thus, the Court held that the conviction could be affirmed, even if there was legally insufficient proof of actual possession, since there was “legally sufficient evidence to establish that defendant 'used or threatened the immediate use' of a knife in the course of the robbery, as the trial court charged.”