A person who fakes a gun by concealing a hand beneath their hoodie can be convicted of robbery in the first degree, New York’s highest court has ruled.
On Nov. 1, 2011, Charles Smith, a homeless 41-year-old, entered a check cashing store in Queens. The teller, who sat behind bulletproof glass, testified that Smith held something under his sweatshirt at the waistband, asked for money and threatened to shoot her.
Police, summoned by a silent alarm pressed by the teller, apprehended Smith several minutes later as he walked down the street about eight blocks away. Smith had no gun on him. Nothing in the record suggested that Smith possessed any item whatsoever.
At trial, Smith was convicted of robbery in the first degree, which New York defines as forcible stealing accompanied by the defendant’s using or displaying what is, or appears to be, a firearm. The appellate court affirmed the conviction, finding that the prosecution established that Smith displayed what appeared to be a firearm while attempting to commit the robbery.
The Court of Appeals agreed. “A victim may reasonably believe that a gun is being used, on the basis of conduct that makes it appear that the defendant is holding a gun, regardless of whether the defendant makes a movement while addressing the victim or keeps his hand concealed throughout the encounter in a manner and location suggesting the presence of a gun,” Judge Eugene Fahey wrote on behalf of five of his colleagues in a ruling decided on March 28.
Oddly, Smith did not avail himself of a defense provided by the law, which allows a defendant to ask the jury to consider reducing the charge to second-degree robbery if the firearm (or what appeared to be one) was, in fact, not a loaded weapon.
The court added that “the precise nature of the object that a defendant displays is not dispositive when analyzing whether a defendant displayed what appeared to be a firearm,” and that the court has affirmed convictions where a defendant used a toothbrush or a towel wrapped around his arm to simulate a gun.
“The state must prove that (1) the defendant ‘consciously display[ed] something that could reasonably be perceived as a firearm,’ and (2) it ‘appear[ed] to the victim by sight, touch or sound that [the victim was] threatened by a firearm,” Fahey noted. “We concluded that ‘when both of these elements are satisfied… the true nature of the object displayed is, as concerns criminality, irrelevant.’” [citations omitted]
Misconstruing the statute
That test, however, misconstrues the law, said Judge Rowan Wilson, who noted that “without the guidance of the legislative history, the [statute] could be interpreted, and has now been by this court, to allow unarmed persons with a hand in a pocket to be charged with the same crime as a robber who fired shots.”
The legislature, when it revised the robbery statute in 1969, intended “that the display of something that was or looked very much like a real firearm was essential to conviction” for either first- or second-degree robbery, Rowan wrote, explaining:
“The statutory language makes sense only in the context of the legislative history: that the problem addressed by the statute was the evidentiary difficulty of proving that an actual gun was loaded and operable – not anything having to do with enhanced fear of the victim.”
Despite that aim, the Court of Appeals has departed from the legislative intent, he noted. “A homeless man walks into a check-cashing store,” Rowan wrote. “This sounds like the start of a bad joke, but instead is filled with pathos.”