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John G entered a bank, walked up to a teller station

John G entered a bank, walked up to a teller station, and handed her a handwritten note that said, “I have a gun, Fill the bag. Don’t say anything or I’ll shoot”. The teller filled the bag with money she had at her station, and John took it and walked out.

According to the report, the teller never saw a gun, and as John was apprehended until months later, there was no evidence, other than the note, that John G had in fact, been in possession of a gun at the time of the robbery.

Based on a charge, the grand jury charged John G robbery in the first degree as defined in the Penal Law 160 and grand larceny in the fourth degree as defined in the Penal Law 155. Accordingly the Supreme Court of New York, Appellate Division, Second Department upheld the grand larceny count but reduced the charge of robbery in the first degree to the charge of robbery in the third degree citing that the evidence to the grand jury was legally insufficient to establish the charge of robbery in the first degree. The Supreme Court reiterated that the prosecution presented insufficient circumstantial evidence from which a grand jury could properly infer the “use or threaten(ed) immediate use of a dangerous instrument” in the course of committing the robbery.

A source explained that, the John’s written threat, without more, was insufficient to establish that John used or threatened the use of dangerous instrument in his actual possession and readily capable of causing death or other serious physical injury . Another source who followed the case explained that the Supreme Court relied on the line of authority holding that, where the defendant is charged with robbery in the first degree for having threatened the use of a dangerous instrument in the course of the crime, the prosecution must prove, as an element of the crime, that the defendant was in actual possession of a dangerous instrument.

J.P. F, a member of the Supreme Court held that the note was an unambiguous statement, that the defendant was in possession of a gun that was capable of being fired, and therefore was in possession of a dangerous instrument, and that he would use it if the teller revealed the robbery. The majority, however, finds the statement legally insufficient to establish the John’s actual possession of a dangerous instrument, reasoning in effect that the John’s own words uttered in the course of robbery cannot constitute legally sufficient evidence of actual possession. Their decision flows directly from the language of the law that a person cannot be “armed” with a weapon without possessing it. The teller testified that she did not actually observe a weapon at the time of the commission of the robbery or immediately thereafter. The Supreme Court held that the Penal Law raises the level of a robbery if, in the course of the commission of a crime, or the immediate flight therefrom, the defendant “is armed with a deadly weapon”, “uses or threatens the immediate use of a dangerous instrument”, or “displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm”.

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