| People v Colon |
| 2014 NY Slip Op 02626 [116 AD3d 1234] |
| April 17, 2014 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, vNelson Colon, Appellant. |
—[*1] James E. Conboy, District Attorney, Fonda (Sarah J. Leszczynski of counsel), forrespondent.
McCarthy, J. Appeal from a judgment of the County Court of Montgomery County(Catena, J.), rendered March 26, 2012, upon a verdict convicting defendant of the crimesof robbery in the second degree and menacing in the second degree.
Defendant entered a convenience store, followed the cashier behind the counter andsaid, "Give me the money. Gun. Give me the money." Two women who were standingnear the cash register ran out of the store. The cashier gave defendant money anddefendant left the store. One of the women called out to her brother, Jose Arroyo Jr., whowas across the street, telling him that there had been a robbery. Arroyo chased defendant,who turned and pointed a weapon at him. Arroyo ducked, and defendant fled.
Defendant was charged with robbery in the second degree, petit larceny andmenacing in the second degree in connection with this incident.[FN*] After a jury trial, he was convicted of robbery in the second degree and menacing in thesecond degree. County Court sentenced him, as a second felony offender, to a prisonterm of 13 years on the robbery conviction, to be [*2]followed by five years of postrelease supervision, and aconcurrent term of one year in jail on the menacing conviction. On defendant's appeal,we affirm.
As relevant here, "[a] person is guilty of robbery in the second degree when he [orshe] forcibly steals property and when . . . [i]n the course of the commissionof the crime or of immediate flight therefrom, he [or she] . . . [d]isplayswhat appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm" (PenalLaw § 160.10 [2] [b]). Defendant argues that the conviction should be reduced torobbery in the third degree—which requires only proof that he forcibly stoleproperty (see Penal Law § 160.05)—because the People failed toprove that he displayed what appeared to be a firearm during the commission of, orimmediate flight from, the crime.
To prove the display element, "[t]he People must show that the defendantconsciously displayed something that could reasonably be perceived as a firearm, withthe intent of forcibly taking property, and that the victim actually perceived the display"(People v Lopez, 73 NY2d 214, 220 [1989]; see People v Baskerville, 60NY2d 374, 381 [1983]; Peoplev Boland, 89 AD3d 1144, 1146 [2011], lv denied 18 NY3d 955 [2012];People v Thomas, 12 AD3d935, 936 [2004], lv denied 4 NY3d 749 [2004]). While the object displayedneed not in fact be a firearm (see People v Lopez, 73 NY2d at 220 [items foundto be sufficient include an object held inside a coat, a towel wrapped around a blackobject, and a toothbrush held in a pocket]; People v Thomas, 12 AD3d at 936),"it must appear to the victim by sight, touch or sound that he [or she] is threatened by afirearm" (People v Baskerville, 60 NY2d at 381; see People v Tineo, 94 AD3d507, 507 [2012], lv denied 19 NY3d 977 [2012]; Matter of Tafari S., 83 AD3d1084, 1085 [2011]). The display requirement "cannot be read so broadly as toinclude mere statements that a robber is armed with a gun" (People v Lopez, 73NY2d at 221; see People v York, 134 AD2d 637, 638-639 [1987], appealdismissed 72 NY2d 868 [1988]). While such statements can give meaning to arobber's otherwise ambiguous actions, such as "a hand consciously concealed inclothing" (People v Lopez, 73 NY2d at 221; see People v Toye, 107 AD3d 1149, 1150-1151 [2013],lv denied 22 NY3d 1091 [2014]; People v Boland, 89 AD3d at 1146),"words alone will not constitute a display of what appears to be a firearm" (People vLopez, 73 NY2d at 221; see People v York, 134 AD2d at 638-639).
Here, the cashier testified that defendant said the word "gun" when demanding thatshe turn over the money, but she did not testify to witnessing any action on his part thatwould constitute a display of a firearm, nor did she testify that she believed he possesseda firearm. Thus, her testimony is insufficient to establish that defendant displayed afirearm during the robbery. But the inquiry does not end there. Although several casesaddress the issue as whether the victim perceived the gun (see e.g. People vLopez, 73 NY2d at 220; People v Baskerville, 60 NY2d at 381; People vBoland, 89 AD3d at 1146), the statute does not mention to whom the apparentweapon must be displayed (see Penal Law § 160.10 [2] [b]; People v Turner, 96 AD3d1392, 1393 [2012], lv denied 19 NY3d 1002 [2012]; but see People vMoon, 205 AD2d 372, 372 [1994], lv denied 84 NY2d 870 [1994]). Thelanguage of the statute—namely, that the display can occur in the course of"immediate flight" from the robbery and not just during the commissionthereof—implies that the display may be directed at an individual other than thevictim of the robbery, with the implication that the apparent weapon must be displayedfor the purpose of allowing the defendant to deter someone from attempting to eitherrecover possession of the stolen property or impede the defendant's escape (Penal Law§ 160.10 [2] [b]).
At trial, Arroyo testified that while he was chasing defendant, defendant"[b]randished a [*3]weapon" that "looked like a gun" ashe was fleeing the scene. When asked what kind of gun, Arroyo responded, "I couldn'tsay. At that time I thought it could have been a BB gun, but I didn't want to take therisk." Arroyo stated that it appeared "[l]ike a handgun," and when defendant pointed it athim, he "ducked just in case [defendant] shot at [him]." On cross-examination, Arroyotestified that he thought it was a BB gun, a gun that shoots BBs and does not use gunpowder, and "[a]fter the fact I said it might have looked like a BB gun, but I wasn'ttaking the risk." On redirect, Arroyo described what he saw in defendant's hand as"resembl[ing] a pistol, handgun," and on recross-examination he said it appeared to be aBB gun pistol or BB gun handgun.
Although a BB gun is not a firearm or pistol within the meaning of the statute (see People v Depaul, 101AD3d 1735, 1735 [2012], lv denied 20 NY3d 1097 [2013]; People vWilson, 283 AD2d 339, 340 [2001], lv denied 97 NY2d 644 [2001]; seealso Penal Law § 265.00 [3]; see generally People v Howard, 22 NY3d 388, 401[2013]), the question is whether defendant displayed "what appear[ed] tobe," and whether Arroyo perceived that object as, "a pistol, revolver . . . orother firearm" (Penal Law § 160.10 [2] [b] [emphasis added]; see People vDepaul, 101 AD3d at 1735 [affirming conviction for menacing in the second degreewhere victim testified that "the BB gun appeared to be a real handgun and he feared forhis life"]). While Arroyo's testimony was somewhat inconsistent or unclear as to whetherhe believed that defendant had an actual firearm as opposed to a BB gun, the evidence,when viewed in the light most favorable to the People (see People v Bleakley, 69NY2d 490, 495 [1987]; People v Toye, 107 AD3d at 1151), is legally sufficientto establish that defendant displayed what appeared to be a pistol or firearm while inimmediate flight from the commission of a robbery.
A jury could reasonably find that a threatened individual was scared and believedthat "the gun displayed might have been real," even if the gun looked like it might be atoy gun and actually turned out to be a toy, because such a person is "not required to callthe defendant's bluff, but could resolve any doubts in favor of the risk presented"(People v Kaur, 204 AD2d 573, 573-574 [1994], lv denied 84 NY2d 869[1994]). Similarly, although Arroyo thought that the weapon displayed by defendantlooked like or could have been a BB gun, he also testified that it looked like a handgun,he did not want to take the risk and he ducked to avoid being shot by defendant. Thisreaction is the type that would be expected from a person who saw a gun that he or shethought was real. Thus, although a different verdict would not have been unreasonable,the guilty verdict on robbery in the second degree was not against the weight of theevidence (see People v Kaur, 204 AD2d at 573; see also People vBleakley, 69 NY2d at 495).
With regard to the menacing conviction, as relevant here, "[a] person is guilty ofmenacing in the second degree when . . . [h]e or she intentionally places orattempts to place another person in reasonable fear of physical injury, serious physicalinjury or death by displaying a deadly weapon, dangerous instrument or what appears tobe a pistol, revolver, rifle, shotgun, machine gun or other firearm" (Penal Law §120.14 [1]). Defendant argues that his conviction should be reduced to menacing in thethird degree—which requires only proof that he intentionally placed anotherperson in fear of death, imminent serious physical injury or physical injury (seePenal Law § 120.15)—because the People failed to prove that he displayeda deadly weapon, dangerous instrument or what appeared to be a firearm.
Notably, the weapon at issue here was never recovered. Consequently, the only proofregarding the weapon was Arroyo's testimony. As noted above, a BB gun is not a firearm(see People v Depaul, 101 AD3d at 1735; People v Wilson, 283 AD2d at340; see generally People v [*4]Howard, 22NY3d at 401). Further, where, as here, the People fail to prove that a gun was operableand loaded with ammunition, it will not qualify as a deadly weapon (see PenalLaw § 10.00 [12]; People v Shaffer, 66 NY2d 663, 664 [1985]; People v Grice, 84 AD3d1419, 1420 [2011], lv denied 17 NY3d 806 [2011]; People v Richard, 30 AD3d750, 753 [2006], lv denied 7 NY3d 869 [2006]), nor will it constitute adangerous instrument unless it was used in some other violent capacity during the crime(see Penal Law § 10.00 [13]; People v Swain, 46 AD3d 1157, 1158 [2007]; People vWasson, 266 AD2d 701, 702 [1999]), which was not the case here. Similar to therobbery count, however, the evidence is legally sufficient to establish that defendantdisplayed what appeared to be a pistol or firearm, and the jury's verdict finding himguilty of menacing in the second degree is not against the weight of the evidence (seePeople v Depaul, 101 AD3d at 1735; see also People v Wilson, 283 AD2d at340; People v Kaur, 204 AD2d at 573).
Peters, P.J., Stein and Rose, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: Defendant was alsocharged with grand larceny in the fourth degree in connection with a separate incident ata different location, but that charge was not submitted to the jury.