AD2 order dated January 28, 2015, affirming judgment of conviction. Decision below: 124 AD3d 918, 998 NYS2d 906. Pigott, J., granted leave November 9, 2015.

ISSUE PRESENTED: Whether there was sufficient evidence of first-degree robbery - - did defendant “display” what appeared to be a firearm. During the robbery, the defendant kept one of his hands at his waist under a sweatshirt, but made no other action or gesture. (Assigned counsel: Skip Laisure & Lynn W.L. Fahey, Appellate Advocates, 111 John St., 9th Floor, NYC 10038.)

Issue before the Court: Does a defendant “display what appears to be a firearm” (Rob 1- PL 160.15[4]) by telling the victim that he has a gun, while his hand is placed, immobile, under his sweatshirt?

 

Held: Yes, under People v. Lopez (73 N.Y.2d 214).  While a verbal threat is in and of itself insufficient, such threat accompanied by a hand consciously concealed in clothing is sufficient.  A defendant could ask for the affirmative defense to Rob 1 (not a loaded and operable firearm), but the defendant did not do so here.

 

CAL Observes: What is notable here is the lone, impassioned dissent from Judge Wilson.  Exhaustively analyzing the legislative history, he states that the legislature never could have intended that a defendant displaying no object whatsoever could be guilty of first-degree robbery. “[A]dherence to the clear intent of the legislature and Governor is more important than pursuing our mistaken course [of case law precedent] to its end.”  Powerful stuff from the new guy.