| People v Ford |
| 2007 NY Slip Op 07920 [44 AD3d 515] |
| October 23, 2007 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Alfred Ford, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Patrick J. Hynes of counsel), andFulbright & Jaworski, L.L.P., New York (Damian Pieper of counsel), for respondent.
Judgment, Supreme Court, New York County (Robert H. Straus, J., on severance motion;Bruce Allen, J., at jury trial and sentence), rendered February 16, 2005, convicting defendant ofrobbery in the first degree (two counts), robbery in the second degree (two counts) and criminalpossession of a controlled substance in the seventh degree, and sentencing him, as a secondfelony offender, to an aggregate term of 10 years, unanimously modified, on the law, to theextent of reducing the conviction for robbery in the first degree under the fifth count of theindictment to robbery in the third degree and remanding for resentencing on that conviction, andremanding for resentencing on the second-degree robbery and controlled substance convictions,and otherwise affirmed.
Defendant was charged in a single indictment with robberies occurring on May 24 and May31, 2004. The court properly exercised its discretion in denying defendant's motion to sever thetrials of the two robberies. Defendant did not establish good cause for a severance under CPL200.20 (3) (a), since there was no material variance in the quantity of proof establishing the twocrimes, and evidence as to the two incidents was presented separately and was capable of beingeasily segregated in the minds of the jurors (see e.g. People v Streitferdt, 169 AD2d 171,176 [1991], lv denied 78 NY2d 1015 [1991]; People v Ndeye, 159 AD2d 397[1990], lv denied 76 NY2d 793 [1990]). We have considered and rejected defendant'sremaining arguments concerning the severance issue.
However, with respect to the May 31 robbery, the evidence was legally insufficient toestablish first-degree robbery under Penal Law § 160.15 (3), which requires use orthreatened use of a dangerous instrument, in this case a knife. To satisfy this statute, a defendantmust actually possess a dangerous instrument, as well as using or threatening to use it (Peoplev Pena, 50 NY2d 400, 407 [1980], cert denied 449 US 1087 [1981]). "A defendant'sstatement that he has a weapon or a threat that he will kill or harm his alleged victim isinsufficient, without more, to sustain a conviction for an offense requiring proof that thedefendant used or threatened to use a dangerous instrument." (People v Peralta, 3 AD3d 353, 355 [2004], lv denied 2NY3d 764 [2004], citing People v Moore, 185 [*2]AD2d825 [1992]; accord People v Robare, 109 AD2d 923, 924 [1985], lv denied 65NY2d 699 [1985].)
Here, the victim testified that defendant said he had a knife and gestured toward his pantspocket. The witness never saw a knife, no knife was recovered, and the victim's only injurieswere the result of being punched by defendant. Accordingly, there was no evidence thatdefendant actually possessed a knife, and the evidence is legally insufficient to sustain aconviction for first-degree robbery.
Contrary to the People's argument, defendant's declaration to the victim that he had a knife,when viewed in the context of a robbery, was not an "admission" that he possessed an actualknife, but a threat to use one, and such a threat has consistently been held to be insufficient. Thecourt's jury charge, which made reference, among other things, to "the knife," rather thana hypothetical knife, was consistent with these principles, and there is no merit to the People'sargument that the evidence was legally sufficient when viewed in light of the charge.
We remand for resentencing upon the reduced conviction of third-degree robbery. Since therecord is unclear as to whether the court actually sentenced defendant under the second-degreerobbery and controlled substance convictions, we remand for resentencing on those convictionsas well. However, we see no reason for resentencing on the first-degree robbery convictionrelating to the May 24, 2004 incident. Concur—Lippman, P.J., Andrias, Williams, Buckleyand Malone, JJ.