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New York Appellate Court Decides if Defendant is Receiving Double Punishment for Robbery and Attempted Assault


Daniel D was indicted along with five other individuals for the murder in the first degree of George Simon. All of the defendants were acquitted of the murder charge but Mr. D was ultimately convicted of assault with intent to kill. For this conviction, he received a sentence of 5 to 10 years. Following his conviction, evidence surfaced that lead to an indictment of Mr. Di Lapo on several counts of burglary in the first degree and attempted robbery in the first degree. On the advice of his defense attorney, Mr. D plead guilty to one count of attempted robbery in the first degree. The Erie County Court sentenced him to a term of 5 to 15 years, to be served consecutively with his previous sentence. Later, this sentence was reduced to 5 to 11 years but was still required to be served consecutively. Mr. D appealed the sentence to the Appellate Division, Fourth Department. The Appellate Division subsequently affirmed the trial court’s decision unanimously.

The case then proceeded to the New York State Court of Appeals. The Court was asked to consider whether the elements of the alleged Robbery and the elements of the first degree attempted assault similar enough to prevent the defendant from receiving a double punishment as prescribed under New York law.

According to the New York Penal Code, robbery consists of the unlawful taking of someone’s personal property through force, coercion or threats. Attempted robbery in the first degree consists of an attempt to take property from someone else. The theft of property or possessions without the use of force is typically charged as larceny. If the perpetrator forcibly enters a building in order to steal, this constitutes burglary under New York law.

Mr. D’s attorney argued that only one act was charged as the assault and attempted robbery. This act concerned the defendant firing at one of the robbery victims with a handgun. The prosecution argued that the robbery and the assault comprised two separate and distinct acts.

The Appeals Court reexamined the trial record in determining their ruling. Based on court records, it appeared that the only evidence connecting Mr. D to the shooting was based on the testimony of a police officer. At trial, the officer stated that Mr. D and others had gone to the victim’s house on the premise of robbing him. Mr. D stated that he fired his weapon at the victim, but only after the victim took aim first. It was also determined that Mr. D wounded the victim but that the gunshot did not kill him. Following the shooting, the men subsequently fled without stealing anything. According to the prosecution, the forcible entry into the victim’s home established the first crime of attempted robbery while the shooting of the victim stemmed from a separate intent to cause his death.

In a previous decision, the Court of Appeals denied a writ of habeas corpus brought by Mr. Di Lapo. In his writ, Mr. D’s defense lawyer claimed that since he had been acquitted of murder, he could not lawfully be prosecuted for or convicted of any of the underlying felonies, including robbery or the additional count of attempted robbery. The Court held that the denial of Mr. D’s writ had no bearing on the issue at hand in the appeal currently before the court.

Citing Section 1938 of the New York Penal Code, the Court of Appeals found that the additional sentence handed down for Mr. D’s guilty plea to the attempted robbery charges was not outside the scope of the law. Essentially, the court held that based on the evidence, it could be concluded that the robbery and the assault were in fact two separate acts, each deserving separate punishment.

As such, Mr. D’s conviction and sentence were upheld.

A dissenting opinion was offered by Judge Bergan, in which he argued that the two events consisted of a unified act and that the language used in the indictment to describe each count actually detailed the same event. Judge Bergan argued for a broader view of Section 1938 and stated that the events that occurred were part of the same continuum and could not be distinguished as separate. As such, he held that the judgment should be reversed, contrary to the majority opinion of the Court of Appeals.

Facing a criminal trial for robbery or other serious crimes can be a frightening prospect but fortunately, Mr. D had the aid of an experienced defense attorney to protect his rights. Although he was ultimately unsuccessful in winning the appeal, he convinced at least one member of the appellate court that the case merited further consideration.

If you or someone you love has been charged with robbery, burglary, theft or other property crimes in the New York area, you need to contact the law firm of Stephen Bilkis and Associates today. We specialize in vigorously defending clients who are facing criminal charges in order to protect their rights. Call us today at 1-800-NY-NY-LAW to speak with a member of our criminal defense team. Alternately, you may visit one of our New York area offices to speak with someone in person. We are eager to discuss your case so don’t hesitate to call or stop by today.

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