People v. Mikal Smith
AD1 order dated September 22, 2011, modifying judgment of conviction. Decision below: 87 A.D.3d 920, 929 N.Y.S.2d 248. Ciparick, J., granted leave June 25, 2012.
ISSUE PRESENTED: Whether the evidence of robbery was sufficient: defendant and an accomplice impersonated police officers and submitted the victim to a patdown, during which they surreptitiously removed property from his person. (Assigned counsel: Leonard J. Levenson, 255 Broadway, Room 1804, NYC 10007.)
Issue before the Court: Whether the defendant and his brother committed a forcible taking – a robbery – rather than merely a larceny by trick, when they accosted the victim while impersonating police officers, and furtively removed the victim’s wallet while frisking him.
Held: The evidence was sufficient to establish robbery. By impersonating police officers, the defendant and his brother impliedly restrained the victim and gave the impression that physical force would be used if the victim did not obey their directives; they also engaged in physical contact with the victim by frisking him and removing items from his pockets.
CAL Observes: The Court left a loophole for creative defense lawyers: would the result have been the same if there had been no frisk?