People v. Cotarelo

Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Owens, J.), rendered June 15, 1982, convicting him of robbery in the first degree, robbery in the second degree and criminal possession of stolen property in the third degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

Criminal Term did not err in failing to charge, as an affirmative defense to robbery in the first degree, that the firearm displayed was not a loaded weapon from which a shot, readily capable of producing death or serious physical injury, could be discharged (Penal Law § 160.15 [4]). From the evidence adduced, there was an insufficient basis upon which to conclude that a charge with respect to the affirmative defense was mandated.

It is well settled that where there is proof that a defendant, in the course of a robbery, displays or utilizes a "weapon” which is incapable of discharging a shot which could cause death or serious physical injury, an affirmative defense to the crime of first degree robbery has been set forth (see, Penal Law § 160.15 [4]; People v Lockwood, 52 NY2d 790; People v Lyde, 98 AD2d 650; People v Stephens, 97 AD2d 523; People v Royster, 91 AD2d 1074, 1075; People v Knowles, 79 AD2d 116, 120; People v Castaldo, 72 AD2d 568; People v Waddell, 66 AD2d 807; People v Parks, 59 AD2d 543, 544; People v Santucci, 48 AD2d 909). It is, however, incumbent upon the defendant to prove by a preponderance of the evidence that the subject weapon was unloaded or incapable of being fired (People v Baskerville, 60 NY2d 374, 380; People v Brown, 108 AD2d 922, 923). "Inducing in the mind of a robbery victim— through any one or more of the five senses * * * the belief that the perpetrator has an available firearm ready to be used constitutes a sufficient display of a firearm within the fair intendment of the statute and an aggravating circumstance justifying a conviction for the crime of robbery in its highest degree (unless the defendant affirmatively proves [Penal Law, § 160.15, subd 4] that the firearm used was not a 'deadly weapon’ [Penal Law, § 10.00, subd 12])” (People v Jenkins, 118 Misc 2d 530, 533). Stated succinctly, the affirmative defense set forth in Penal Law § 160.15 (4) "affords the defendant an opportunity to fight his way out of a first degree conviction if he can prove that the gun was either unloaded or incapable of being fired” (Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law § 160.15, at 206). It bears noting, furthermore, that the aforesaid provision has been upheld against constitutional challenge (see, People v Clark, 41 NY2d 612, 617, cert denied 434 US 864).

The defendant’s argument is premised upon the conclusion contained in the report of an investigating police officer that the weapon involved was "apparently” firing blanks. That conclusion was based upon the officer’s inability to turn up any spent shells following a detailed investigation of the crime scene. Nor were any bullet holes made in the plate glass window of the premises. The officer at no time stated, with any degree of certainty, however, that the weapon involved was unloaded or inoperable. Evidence of this speculative nature, coupled with the testimony of two eyewitnesses to the effect that they had heard the firing of shots during the incident, gave rise to the defendant’s argument on appeal that the firearm displayed was not a loaded weapon from which a shot could be discharged capable of causing death or serious physical injury. Significantly, the main thrust of the defendant’s argument on appeal as well as his trial strategy was not that he had robbed the premises with an inoperable weapon but, rather, that he had not committed the robbery at all and that the People’s case was essentially a matter of mistaken identification (cf., People v Hassan, 79 AD2d 713). Moreover, the mere fact that a particular weapon may be loaded with blank rounds does not, as practical experience tells us, establish that that weapon is incapable of firing a shot which can cause death or serious injury. This point was cogently demonstrated by the recent tragic death of actor Jon-Erik Hexum, who accidentally shot himself in the temple with a revolver loaded with a blank round. Under these circumstances, and given the absence of any tangible evidence concerning the nonlethal nature of the weapon, we conclude that Criminal Term properly refused to charge the affirmative defense.

The instant situation is somewhat analogous to that presented in People v Ames (115 AD2d 543, 545, lv denied 67 NY2d 759), where the denial of the defendant’s request to charge the lesser included offense of robbery in the second degree was upheld notwithstanding evidence that although the defendant had pulled the trigger while "aiming a weapon at a restaurant manager, the gun failed to fire. That failure was partially explained by the testimony of two eyewitnesses to the effect that after the trigger was pulled, they observed bullets in some but not all of the cylinders in the gun. Given this testimony and the lack of any evidence that the gun was inoperable, this court concluded that the defendant was not entitled to a charge with respect to the lesser offense. Inasmuch as the defendant in the instant case made no claim that he was carrying some clearly inoperable firearm such as a toy gun (cf., People v Smith, 55 NY2d 888), a like result should prevail here.

Assuming, arguendo, that the gun involved here contained only blanks, the defendant’s position is still an untenable one. The United States Supreme Court has ruled that an unloaded handgun is a dangerous weapon within the meaning of the Federal bank robbery statute (McLaughlin v United States, 476 US 16, 106 S Ct 1677). As was recognized by the Supreme Judicial Court of Massachusetts in Commonwealth v Carter (396 Mass 234, 484 NE2d 1340, 1342), the use of a gun, even if unloaded, might provoke violent resistance from the intended victim or might induce other parties, such as police officers, to intervene with deadly force. Thus, the commission of an armed robbery with an unloaded gun was pronounced inherently dangerous to human life. More generally, any object which a victim perceives to have apparent ability to produce bodily harm can be considered a "dangerous weapon” for purposes of establishing an armed offense (Paris v United States, 515 A2d 199, 204 [DC]). The following language of the Supreme Judicial Court of Massachusetts is illustrative in the context of the instant case: "The fundamental reason for permitting a conviction for simple assault on proof of apparent ability of the assailant to accomplish the attempted or threatened battery is that the public peace and order is affected by and dependent upon what is reasonably apparent, and not upon a secret fact or reason rendering the assailant incapable of accomplishing the battery. The reason applies with even greater force to a case of apparent ability to accomplish a battery attempted or threatened by means of a firearm. The threat to the public peace and order is greater, and natural reactions thereto by the intended victim and others may be more sudden and violent than in cases where no weapon is involved. There is no reason why the rule of apparent ability should not apply to charges of aggravated assaults by means of weapons. It is sufficient to prove such a charge if the evidence shows an apparent ability to accomplish the battery by means of the particular weapon used. Thus, the mere fact that a firearm brandished by an assailant is known by him to be unloaded, or to be loaded with blank cartridges, does not entitle him to an acquittal on a charge of the aggravated offense of assault by means of a dangerous weapon” (Commonwealth v Henson, 357 Mass 686, 693-694, 259 NE2d 769, 774).

More closely on point, the Supreme Court of Nevada has held that the use of a "blank gun” in the commission of a robbery was sufficient to warrant an enhanced penalty for a crime committed with the use of a deadly weapon (Anderson v State of Nevada, 96 Nev 633, 614 P2d 540). The District of Columbia Court of Appeals has likewise ruled that an imitation or blank pistol is to be considered a dangerous or deadly weapon (Meredith v United States, 343 A2d 317, 320 [DC]). While New York may not have gone so far, it appears from the trend of recent decisions that the affirmative defense afforded by Penal Law § 160.15 (4) is not as expansive as the defendant would have us find here. In any event, the defendant has failed to present any tangible proof whatsoever vis-ávis the affirmative defense.

Inasmuch as (1) the defendant and his cohort displayed a seemingly operable firearm to a store clerk in an attempt to compel her to surrender the cash register receipts, (2) the victim reasonably believed that her life was being threatened, and (3) a gun loaded with blanks can clearly cause death or serious physical injury, the defendant was properly convicted of robbery in the first degree. Since the defendant presented no tangible evidence concerning the nonlethal nature of the weapon involved, a charge on the affirmative defense was not warranted. Accordingly, the judgment appealed from is affirmed. Thompson, J. P., Niehoff and Weinstein, JJ., concur.