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On June 15, 1982, Joseph C was convicted of robbery in the first degree

On June 15, 1982, Joseph C was convicted of robbery in the first degree, robbery in the second degree and criminal possession of stolen property in the third degree in the Supreme Court of Richmond County, New York. Mr. C’s attorney appealed the conviction to the Supreme Court Appellate Division, Second Department.

Mr. C’s appeal centered on the trial judge’s alleged failure to charge the jury that the firearm used in the crime was not actually loaded and therefore, was not capable of causing serious bodily injury or death to the robbery victim. According to his defense lawyer, the judge should have used this information to charge the jury with an affirmative defense to robbery. Had the crime not involved any weapon at all, Mr. C may have only been charged with larceny or a similar crime involving property theft.

The Appellate Court noted that under New York Penal law, if there is proof that a criminal defendant displayed or used a weapon that was not loaded or otherwise incapable of producing a shot during a robbery, this establishes an affirmative defense to robbery in the first degree. However, the court also went on to say that it is the defendant who bears the burden of proof in establishing by a preponderance of the evidence that the gun was incapable of firing.

Mr. C’s appeal focused on the investigating officer’s report that the weapon used in the robbery was firing blanks. The officer in question based this conclusion on the fact that no spent shells were recovered from the crime scene and no bullet holes were present in the windows of the structure where the robbery took place.

The Appellate Court countered this by stating that nowhere in his report did the officer every say specifically that the weapon used in the robbery was not loaded or otherwise incapable of firing. The court also went on to say that just because a weapon can be loaded with blanks does not mean that it is not capable of firing and/or causing injury or death. Based on this assumption, the court concluded that the trial court’s omission of the affirmative defense in charging the jury was correct.

The court compared Mr. C’s argument to similar circumstances set forth in People v. Ames. In that case, the defendant appealed the trial court’s decision not to charge the jury on the lesser offense of robbery in the second degree. The defendant argued that the lesser charge should be allowed because the gun used in the robbery did not fire. The appeal was denied based on eyewitness testimony that the gun was loaded at the time of the robbery. The appellate court in that decision concluded that the defendant was not entitled to a lesser charge because there was no evidence that the gun was incapable of firing.

In Mr. C’s case, the Appellate Court argued that even if the gun involved in the robbery contained only blanks, there was still no grounding for reversing his conviction based on the U.S. Supreme Court’s ruling that an unloaded gun may still be regarded as a dangerous weapon in the context of a robbery.

The Appellate Court also cited similar cases in Nevada and Washington D.C. In one case, the Supreme Court of Nevada’s ruling that the use of a blank gun in a robbery merited the same punishment reserved for any crime committed with a deadly weapon. In another ruling, the Court of Appeals of the District of Columbia ruled that a replica or blank gun is still considered to be a dangerous and/or deadly weapon.

Based on the foregoing decisions, the Appellate Court rejected Mr. C’s appeal, citing the failure of his defense lawyer to present sufficient evidence supporting the affirmative defense.
In a dissenting opinion, two members of the Appellate panel argued that Mr. C’s conviction for first degree robbery should be reversed and a new trial ordered only for that count of the indictment. The judges noted that the evidence presented at trial should have been sufficient to conclude that the weapon used in the robbery contained only blanks.

Specifically, the judges pointed to testimony offered by prosecution witnesses that the weapon never actually fired any bullets. They then argued that not charging the jury with the affirmative defense may have lead them to incorrectly assume that the weapon’s ability or inability to fire was not a relevant factor in establishing his guilt.

The omission of the affirmative defense charge effectively hindered Mr. C’s from mounting the strongest defense possible. The dissenting judges held that the evidence presented at trial was more than sufficient to allow for the affirmative defense charge and that contrary to the majority’s opinion, Mr. C’s appeal should be granted.

While Mr. C failed to win his appeal, his attorney did manage to sway the opinion of at least two members of the Appellate panel. By aggressively defending his clients’ rights, Mr. C’s defense counsel may have paved the way for a successful appeal to a higher court.

At the law firm of Stephen Bilkis and Associates, our expert team of New York Criminal Defense Lawyers is equally dedicated to preserving the rights of our clients. If you need expert legal representation for a criminal case involving robbery charges or another crime such as larceny, call us today at 1-800-NY-NY-LAW to speak with one of our experienced defense attorneys. You may also visit us at one of our numerous New York area locations to discuss your case.

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