| People v Mason |
| 2011 NY Slip Op 03921 [84 AD3d 1502] |
| May 12, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v RandolphMason, Appellant. |
—[*1] P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the Supreme Court (Lamont, J.), rendered December4, 2009 in Albany County, convicting defendant following a nonjury trial of the crimes ofrobbery in the first degree and grand larceny in the fourth degree (two counts).
Defendant committed two separate thefts in Albany County during the afternoon of April 7,2009. Early in the afternoon, he snatched a purse from an elderly woman entering a departmentstore at Colonie Center shopping mall. Mid-afternoon that day, he walked into a bank, reachedacross the counter, grabbed a teller by the shirt and jacket, pulled her part way across the counter,and demanded money. The teller handed defendant $1,464, which he took and then fled. Twodays later, defendant turned himself in at a State Police barracks in Schoharie County.
Following a nonjury trial, defendant was convicted of robbery in the first degree and grandlarceny in the fourth degree for taking money at the bank, and grand larceny in the fourth degreefor the purse snatching. Defendant, who was in his forties and had no criminal record, wassentenced to concurrent prison terms for the bank crimes of 10½ years for robbery and1
Defendant contends that his conviction of robbery in thefirst degree was not supported by legally sufficient evidence and was against the weight of theevidence. "The standard for determining legal sufficiency 'is whether the evidence, viewed in thelight most favorable to the People, could lead a rational trier of fact to conclude that the elementsof the crime had been proven beyond a reasonable doubt' " (People v Washington, 8 NY3d 565, 570 n 2 [2007], quotingPeople v Rossey, 89 NY2d 970, 971 [1997]). Although defendant acknowledgessufficient proof to establish robbery in the third degree, he asserts that the People failed to provean aggravating circumstance necessary to elevate the crime to robbery in the first degree (seegenerally People v Ramirez, 89 NY2d 444, 452 [1996]; People v Miller, 87 NY2d211, 214-215 [1995]). He was convicted under Penal Law § 160.15 (3), which required asan aggravating circumstance proof that when he forcibly stole the money at the bank he "[u]se[d]or threaten[ed] the immediate use of a dangerous instrument."
There was proof—a bank security camera image and a recorded phone call betweendefendant and his wife—indicating that he possessed a letter opener when he was in thebank. A letter opener could constitute a dangerous instrument (see Penal Law §10.00 [13]; see generally People v Owusu, 93 NY2d 398, 403-404 [1999]). However,unlike Penal Law § 160.15 (2), where proving mere possession of a "deadly weapon" is anadequate aggravating circumstance to establish robbery in the first degree, possession alone of apotentially "dangerous instrument" is not sufficient under Penal Law § 160.15 (3) (seePeople v O'Leary, 137 AD2d 631, 631 [1988]; cf. People v Hirniak, 118 AD2d 729,730 [1986], lv denied 67 NY2d 1053 [1986]). As explained by the Court of Appeals innoting the history of the statute, "if [the defendant] does not carry a weapon classified as 'deadly'but instead a more broadly defined 'dangerous instrument,' the statute now requires a showing notmerely of possession but of 'use' or threatened 'immediate use,' on the theory that it was theemployment of such an instrumentality that was significant" (People v Pena, 50NY2d 400, 407 n 2 [1980], cert denied 449 US 1087 [1981] [citation omitted]; seegenerally People v Owusu, 93 NY2d at 401; Greenberg et al., New York Criminal Law§ 14:10 [6 West's NY Prac Series 2010]).
Here, the teller from whom defendant demanded money testified that she never saw a letteropener or other such instrument in defendant's possession. She further recalled that his statementto her was limited to his demand that she hand over money. When specifically asked whether hethreatened her with a knife or any object, she responded that he did not. Another teller who waslocated only a few feet away also testified that she did not see a knife or similar object indefendant's possession during the robbery. She stated that she could see defendant's hands andthat she did not see anything in his hands at the time of the robbery. When asked whether heuttered any threats, she responded that she did not hear a threat and that he simply said, "Give meyour money."
The evidence in the record, viewed in the light most favorably to the People, does notestablish that defendant used or threatened the immediate use of the letter opener. Neitherwitness saw the letter opener and both testified that he made no threat indicating use of anyinstrument. Words may not always be necessary to communicate a threat where, for example, aknife is waived or brandished (see People v Thomas, 161 AD2d 543, 543 [1990], lvdenied 76 NY2d 866 [1990]). However, the testimony of the teller from whom the moneywas taken (as well as the teller next to her) established that defendant did not make any suchthreatening action with the letter opener. Although the evidence was insufficient for robbery inthe first degree, the proof did establish the lesser included offense of robbery in the third degreeand we modify the judgment accordingly (see CPL 470.15 [2] [b]).[*3]
The weight of the evidence argument is academic, as isthe challenge to the sentence since defendant must be resentenced on the top count. The Peopleacknowledge that the restitution order must be reduced from $1,500 to $1,464, plus a 5%surcharge.
Spain, J.P., Kavanagh, McCarthy and Egan Jr., JJ., concur. Ordered that the judgment ismodified, on the law, by (1) reducing defendant's conviction of robbery in the first degree undercount 1 of the indictment to robbery in the third degree and (2) reducing the restitution orderfrom $1,500 to $1,464 (plus surcharge); vacate the sentence imposed on said conviction andmatter remitted to the Supreme Court for resentencing; and, as so modified, affirmed.