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Defendant’s Statement, Alone, Does Not Constitute Possession Of A Dangerous Instrument


People v. Grant 2011 NY Slip Op 07304

Decided New York Court of Appeals October 20, 2011

Issue: whether defendant’s written statement threatening to shoot a robbery victim with a gun constitutes legally sufficient evidence that he was in actual possession of a dangerous instrument at the time of the crime to support the charge of robbery in the first degree

Holding: The Court of Appeals held that this was not legally sufficient evidence.  A defendant’s statement that he is in possession of a dangerous instrument, standing alone, does not supply sufficient proof to establish actual possession of a dangerous instrument at the time of the crime to support the charge of first-degree robbery.

Facts: Defendant was indicted on one count of first-degree robbery and on one count of grand larceny in the fourth degree defendant entered a Staten Island bank, approached a teller assigned to one of the stations in the front and passed her a handwritten note. The note, written on the back of a deposit slip, stated, “I have a gun, Fill the bag. Don’t say anything or I’ll shoot.” The teller, who did not testify in the Grand Jury that she saw a weapon, complied with the note’s directive and filled defendant’s bag with the money she had at her station.

In an omnibus motion, defendant sought a dismissal of the two-count indictment   defendant argued that the demand note indicating that he was armed with a loaded gun was insufficient to establish the element of actual possession of a dangerous instrument necessary to sustain the first-degree robbery charge.

Supreme Court, after inspecting the minutes from the Grand Jury proceeding, upheld the fourth-degree grand larceny charge, but, reduced the first-degree robbery count to robbery in the third degree (Penal Law § 160.05). Relying on People v Pena (50 NY2d 400 [1980], it concluded that defendant’s written statement threatening that he had a gun and that he would shoot, “without more,” was legally insufficient to support a charge of first-degree robbery.

Legal Analysis: To dismiss [or reduce] an indictment on the basis of insufficient evidence before a Grand Jury, a reviewing court must consider ‘whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury'” (People v Bello, 92 NY2d 523, 525 [1998].

The Legislature has defined legally sufficient evidence as “competent evidence which, if accepted as true, would establish every element of an offense charged” (CPL 70.10 [1]). “In the context of a Grand Jury proceeding, legal sufficiency means prima facie proof of the crimes charged, not proof beyond a reasonable doubt”  Thus, a reviewing court must determine “‘whether the facts, if proven, and the inferences that logically flow from those facts supply proof of every element of the charged crimes,’ and whether ‘the Grand Jury could rationally have drawn the guilty inference'”

 The elements necessary to establish the charge of first-degree robbery under Penal Law § 160.15 (3): 
[a] person is guilty of robbery in the first degree when he forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime . . . uses or threatens the immediate use of a dangerous instrument.

In analyzing the legal sufficiency of the evidence in Pena, we noted as a threshold matter that first-degree robbery, as charged under subdivision three of the statute, required a finding “that Turrell actually possessed a dangerous instrument at the time of the crime” We observed that the statute, as amended, mandated this showing “on the theory that it was the employment of such an instrumentality that was significant” to sustain the charge

Following our decision in Pena, all four departments of the Appellate Division have adopted the rule that “[a] defendant’s statement that he has a weapon or a threat that he will kill or harm his alleged victim is insufficient, without more, to sustain a conviction for an offense requiring proof that defendant used or threatened to use a dangerous instrument”

We have not had the occasion to determine whether a defendant’s statement that he possesses a dangerous instrument, standing alone, constitutes legally sufficient evidence that he is in actual possession of such weapon to support the charge of first-degree robbery under subdivision three of the statute.

We now hold, in accord with Appellate Division precedent, that a defendant’s statement that he is in possession of a dangerous instrument, standing alone, does not supply sufficient proof to establish actual possession of a dangerous instrument at the time of the crime to support the charge of first-degree robbery.

Rather, we conclude that this type of statement — whether in the form of a verbal threat or a handwritten note — only establishes the threat of physical force necessary to support the charge of third-degree robbery. Accordingly, the People must furnish additional proof, separate and apart from a defendant’s statement, that would permit a rational fact finder to infer that a defendant was in actual possession of a dangerous instrument.

To hold otherwise would blur the distinction created in the carefully calibrated statutory scheme between the lesser included offense of third-degree robbery, a class D non-violent felony and the aggravated charge of first-degree robbery, a class B violent felony

Applying this standard to the facts in this case, we agree with the courts below that the evidence presented to the Grand Jury did not support the charge of first-degree robbery under subdivision three of the statute. The only proof that the People introduced in the Grand Jury that defendant was in actual possession of a dangerous instrument — here, a gun — was the handwritten demand note he passed to the victim.  Absent some other
corroboration that defendant actually possessed a dangerous instrument, “the Grand Jury could [not] rationally have drawn the guilty inference” that defendant committed the crime of first-degree robbery (Bello, 92 NY2d at 526). Therefore, Supreme Court properly reduced that count of the indictment to third-degree robbery.