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Defining “Force” Under The Robbery Statute


People v. Smith 

2014 NY Slip Op 00902

New York Court of Appeals 

Decided February 13, 2014

Issue: Whether property is forcibly stolen and a robbery was committed when a defendant, posing as a police officer, orders the victim to stand up against a wall and, under the guise of frisking victim,  steals money from his pockets.

Holding: Defendants impersonated police officers and restrained the victim. They gave the impression that disobeying their directives could result in imminent physical repercussions. In addition to the threat, they also engaged in physical contact with the victim — the frisk — to accomplish the theft. The People therefore adequately established that defendant committed forcible robbery, not merely larceny by trick.

 Facts: Defendant Mikal Smith and his brother impersonated plainclothes police officers as they approached the victim in the stairwell of his apartment building. Defendant ordered the victim to stop; announced that he was a police officer; displayed a fake badge hanging from his neck (similar to one worn by his brother); and asked the victim to produce identification. After the victim did so, defendant told him to place his hands on the wall. The victim complied with these demands and was frisked, during which time defendant removed items from the victim’s pockets. One of the assailants then declared “this is not the person we are looking for” so the victim was permitted to leave.

Upon realizing that the assailants had stolen $200 from him, the victim called 911 and ran after them. While following them down the street, the victim pointed out the assailants to responding police officers.  Defendant was charged with robbery and criminal impersonation.

At trial, defendant moved to dismiss the count of second-degree robbery, claiming that, although the People had evidence sufficient to prove larceny by trick (see Penal Law § 155.05 [2] [a]), the evidence was insufficient to support the forcible theft element of robbery.

Legal Analysis: A larceny becomes robbery if property is forcibly stolen (see Penal Law § 160.00). As relevant in this case, “force” refers to the use or threatened use of immediate physical force upon another person during the course of committing a larceny for the purpose of preventing or overcoming resistance to the taking of the property. Second-degree robbery occurs when an individual forcibly steals property while being aided by another person who was actually present during the crime (see Penal Law § 160.10 [1]).

Viewing the facts in the light most favorable to the People, there was a valid line of reasoning and permissible inferences that allowed the jury to rationally conclude that defendant forcibly stole the victim’s property. Threats alone can satisfy the statutory definition of “force”. By impersonating police officers, defendant and his brother restrained the victim and conveyed the impression that disobeying their directives could result in imminent physical repercussions, which caused the victim to submit to their false assertion of legal authority. Aside from this threat, they also engaged in physical contact with the victim — they frisked him and removed items from his pockets — to accomplish the theft. The People therefore adequately established that defendant committed forcible robbery, not merely larceny by trick.

Stephen Preziosi is a criminal appeals lawyer in New York City’s Times Square.  His firm handles both New York Criminal Appeals and Federal Criminal Appeals throughout the nation.