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New York Appellate Court Reverses, Contending Jury Wasn’t Properly Instructed on the Crime of Robbery


On July 28, 1971, E was convicted in the Bronx County Supreme Court of two counts of murder and felony possession of a weapon. The murder convictions were based on allegations that Mr. D, acting in concert with another person, shot and killed Dolores S and Wilfredo H during the commission of a robbery. Under New York law, robbery is defined as the taking of another person’s property through the use of threats or force. In cases where a weapon is involved, the charge may be elevated to aggravated robbery. Robbery differs from other property crimes, such as burglary, which generally does not involve the use of force against another person.

Following his conviction, Mr. D’s attorney filed an appeal on his behalf, alleging that the jury was never properly instructed as to the elements of robbery and criminal attempt.

The case was presented to a panel of judges from the Supreme Court Appellate Division. In a majority concurring opinion, the appellate court found that the trial court had erred in not providing the jury with specific instruction as to what elements constitute the crime of robbery. However, at the time the jury was charged, Mr. D’s defense lawyer raised no objection to the judge’s failure to instruct the jury regarding the elements of robbery.

The appellate court also noted that the fact that the shooting deaths of the victims had occurred during a robbery was established beyond a reasonable doubt and that an entire reading of the felony murder charge covered the elements of the crime in question. Following this logic, the court reasoned that the jury’s conviction of Mr. D on the felony murder counts implied that they believed he had participated in the attempted robbery which lead to the shooting, based on his own confession.

The appellate court agreed Mr. D’s appeal had no grounding and that setting aside his conviction would be a compromise of justice. In a majority ruling, the jury’s original verdict was upheld.

A dissenting opinion was offered by one member of the appellate panel who held that while the evidence was sufficient to sustain a conviction, an error had occurred in charging the jury.

According to the dissenting opinion, both Mr. D and another individual were originally charged with two counts of intentional murder, two counts of murder perpetrated in the commission of a robbery, grand larceny and felony weapon possession. Mr. D’s co-defendant was convicted on all counts and was established as the actual perpetrator of the two shootings. At Mr. D’s trail, the judge dismissed both of the intentional murder counts as well as the robbery and larceny charges.

The trial judge then charged the jury regarding the felony murder counts, telling them that they were responsible for determining whether beyond a reasonable doubt Mr. D participated in the robbery or attempted robbery. The judge also told the jury that if they did not believe he was involved in the commission of a robbery then they must acquit him. The jury was further instructed that if they believed that he did participate in the robbery and that both victims were killed during the commission of that crime, then they would have grounds to find him guilty of felony murder.

The dissenting judge argued that the jury should have been charged on the elements of robbery since they were being asked to determine whether Mr. D had in fact participated in the crime. He held that in order for a jury to establish grounds for a felony murder conviction, they must understand the elements of the underlying crime. Since the elements of robbery were never explicitly charged, the jury did not have sufficient information to reach a valid verdict. Based on this argument, the dissenting judge held that in order to sustain the felony murder conviction, the jurors needed to have proof of Mr. D’s intent to commit robbery, which would require the judge to charge them regarding the elements of robbery.

Following this logic, the dissenting judge held that Mr. D’s conviction should be reversed and remanded for a new trial.

Although Mr. D’s appeal was ultimately unsuccessful, his defense attorney acted correctly in bringing the alleged error to the appellate court’s attention. His actions demonstrate the necessity of experienced legal representation when dealing with the New York legal system.

If you or someone you know is facing criminal charges for robbery or a similar crime, such as larceny, enlisting the aid of an experienced New York Criminal Defense Attorney is essential for protecting your rights. The law firm of Stephen Bilkis and Associates specializes in defending individuals who have been charged with theft and other serious crimes. If you need help with a criminal case, call us now at 1-800-NY-NY-LAW to speak with a member of our legal defense team or you may visit one of our New York are offices. We are eager to discuss your New York robbery case.

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