You Say Potato, I Say Potaaato, You Say Robbery in the First Degree, I Say Petit Larceny (Or Robbery in the Third Degree)

by
Jill Paperno
Special Assistant Monroe County Public Defender

1. When Is An Alleged Robbery Not A Robbery? (Was it a forcible stealing?)

Penal Law Section 160 defines robbery as "forcible stealing." The statute states "A person forcibly steals property and commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of:
1. Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or 2. Compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aides in the commission of the larceny.

we handle many cases in which a client steals items from a supermarket or store, and engages in a confrontation with security or the owner. Whether that confrontation makes the petit larceny a robbery depends on the particular facts of the case. If the defendant, with steaks tucked neatly wherever steaks may be tucked fights the officers, then there is a basis for a robbery charge. If, however, the defendant, hearing security officers' calls to stop, abandons the property and then fights off the officers, or they fall out before the confrontation, there is no robbery.

In People v. Nixon 156 AD2d 144 (First Dept. 1989) the First Department addressed this issue. Mr. Nixon, apparently smitten and broke, stole roses from a florist's stand. The florist pursued him and a physical confrontation involving the florist and a police officer followed. The roses were not found on Mr. Nixon after the confrontation. The First Department reduced Nixon's conviction from Robbery in the Third Degree to Petit Larceny, stating

"To sustain a conviction of robbery in the third degree, the prosecution must prove that the defendant used force in the commission of the theft (Penal Law § 160.05). More specifically, it must be shown not simply that the incident included the use of force, but that the defendant used or threatened 'the immediate use of physical force upon another person for the purpose of: 1. Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or 2. Compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny' (Penal Law § 160.00; see also People v. Rudelt, 6 A.D.2d 640, 642, 179 N.Y.S.2d 916; People v. Chessman, 75 A.D.2d 187, 193–94, 429 N.Y.S.2d 224, appeal dismissed, 54 N.Y.2d 1016, 446 N.Y.S.2d 248, 430 N.E.2d 1301). The issue presented by the facts at bar is whether it was established that the defendant did, in fact, use physical force 'for the purpose of ... preventing or overcoming resistance ... to the retention [of the stolen property] immediately after the taking.' We do not think that it was.'"

In People v. Miller 217 AD2d 970 (Fourth Dept. 1995) (an appeal from one of my cases where the appellate attorney did way better than I did!) the Fourth Department recognized the requirement that the use of force be for the purpose of taking or retaining the property.

"In order to sustain a conviction for robbery in any degree, it must be shown that, in the course of committing a larceny, defendant used or threatened the immediate use of physical force upon another person for the purpose of either preventing or overcoming resistance to the taking of the property or the retention thereof or for the purpose of compelling the owner to deliver up the property' ( People v. Smith, 166 A.D.2d 879, 879–880, 560 N.Y.S.2d 718, lv. denied 77 N.Y.2d 882, 568 N.Y.S.2d 925, 571 N.E.2d 95, 78 N.Y.2d 927, 573 N.Y.S.2d 479, 577 N.E.2d 1071; see, Penal Law § 160.00). Thus, if the jury had rejected the prosecution's theory that defendant remained in possession of the stolen property (the meat) at the time that he threatened the use of physical force, the jury could not (emphasis added) have concluded that his 'conscious objective in threatening to use physical force was to prevent or overcome resistance to the retention of the property' ( People v. Kellam, 189 A.D.2d 1008, 1010, 592 N.Y.S.2d 864, citing People v. Nixon, 156 A.D.2d 144, 146, 548 N.Y.S.2d 194, appeal dismissed 76 N.Y.2d 870, 560 N.Y.S.2d 984, 561 N.E.2d 884)."

So when you have one of these cases, consider the statements of the security officers, owner or other witnesses, and whether they indicate the property was no longer on the defendant at the time the confrontation ensued.

2. Robbery in the First Degree - subdivisions 2, 3 and 4

Subdivision 2

While we're on the topic, when is a Robbery in the First Degree properly charged under 160.15(2) or (3) and (4) and what is the difference? Subdivision 2 is the charge that a person forcibly steals property and while doing so, he or another participant "is armed with a deadly weapon." Penal Law Section 10.00 (the definitions section), subdivision 12 defines "deadly weapon" as "any loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged, or a switchblade knife, gravity knife, pilum ballistic knife, metal knuckle knife, dagger, billy, blackjack, plastic knuckles or metal knuckles." So if a defendant is alleged to have engaged in a robbery by either threatening or using a weapon that is not shown and not recovered, threatening or using a gun that is not discharged (to establish it is loaded) or threatening or using one of these other types of weapons, you should be able to challenge the indictment with respect to that charge.

Subdivision 3

The definition of robbery under subdivision 3 requires the defendant use or threaten the immediate use of a dangerous instrument. Immediate is the critical word there. In People v. Pena, the Court of Appeals stated, "Decisional law tells us that, though the statutory ground upon which the first degree robbery count was brought is not explicit in that regard (Penal Law, s 160.15, subd. 3), the jury was required to find that Turrell actually possessed a dangerous instrument at the time of the crime (see People v. Early, 59 A.D.2d 912, 399 N.Y.S.2d 145; People v. Briggs, 52 A.D.2d 1053, 384 N.Y.S.2d 894)." Thus, to be convicted of a charge of robbery requiring the use or threat of immediate use of a dangerous instrument, there must be proof beyond a reasonable doubt that the defendant actually possessed a dangerous instrument. (For the definition of dangerous instrument see Penal Law Section 10.00(13). The Court of Appeals, in People v. Grant 17 NY3d 613 clearly stated this past fall that a defendant's statement alone is insufficient to establish his or her possession of a dangerous instrument.

"We now hold, in accord with Appellate Division precedent, that a defendant's statement that he is in possession of a dangerous instrument, standing alone, does not supply sufficient proof to establish actual possession of a dangerous instrument at the time of the crime to support the charge of first-degree robbery. Rather, we conclude that this type of statement—whether in the form of a verbal threat or a handwritten note—only establishes the threat of physical force necessary to support the charge of third-degree robbery. Accordingly, the People must furnish additional proof, separate and apart from a defendant's statement, that would permit a rational fact finder to infer that a defendant was in actual possession of a dangerous instrument ( see Bello, 92 N.Y.2d at 526, 683 N.Y.S.2d 168, 705 N.E.2d 1209). To hold otherwise would blur the distinction created in the carefully calibrated statutory scheme between the lesser included offense of third-degree robbery, a class D non-violent felony ( see Penal Law § 160.05) and the aggravated charge of first-degree robbery, a class B violent felony ( see Penal Law §§ 160.15[3]; 70.02[1][a] ). Indeed, as we stated in Pena, it is the actual “ employment ” of a dangerous instrument that elevates the use or threat of physical force to first-degree robbery ( see 50 N.Y.2d at 408 n. 2, 429 N.Y.S.2d 410, 406 N.E.2d 1347 [emphasis in original] )."

So a defendant who provides a note to a bank teller indicating s/he has a weapon, but does not gesture or actually possess a weapon, may be guilty of Robbery in the Third Degree, but not Robbery in the First Degree.

Subdivision 4

Subdivision 4 requires that the defendant "display what appears to be a pistol, revolver (or other type of gun listed in the statute). The gun does not have to be operational, or even a real gun for a defendant to be charged with Robbery in the First Degree under this statute. In fact, the defendant may be holding his hand in his jacket in order to be charged under this statute. It is an affirmative defense that the gun is not "a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged." Thus, if your client is charged under this statute and the gun is inoperable, or a BB gun, there is insufficient proof of Robbery in the First Degree. But there is proof of Robbery in the Second Degree, 160.10(2)(b). There are the rare cases where you hope your client is caught with the gun, because if the gun is not found, and you do not have another defense, you may have to prove the affirmative defense to get the lesser charge.