This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 23
The People &c.,
            Respondent,
        v.
Charles Smith,
            Appellant.




           Craig A. Stewart, for appellant.
           William H. Branigan, for respondent.




FAHEY, J.:
           Here we face the question of whether the facts of this
case fit within our analysis in People v Lopez (73 NY2d 214
[1989]).   We conclude they do.    In Lopez, there was testimony
that a defendant placed one of his hands under his clothing and
conveyed to the witness that he had a gun.     We held this evidence


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                                - 2 -                          No. 23

to be legally sufficient to establish display of what appears to
be a firearm under Penal Law § 160.15 (4).    Here, the evidence
presented a question of fact for the jury to determine whether a
reasonable person would believe that defendant displayed what
appeared to be a firearm.
                                 I.
            Defendant was charged with attempted robbery in the
first degree (Penal Law §§ 110.00 [attempt], 160.15 [4]
["forcibly steals property and . . . , in the course of the
commission of the crime or of immediate flight therefrom, . . .
(d)isplays what appears to be a . . . firearm"]).    His identity
as the perpetrator of the attempted robbery is not disputed.
Rather, the question before us is whether the evidence is legally
sufficient to establish that defendant's conduct amounted to
displaying what appeared to be a firearm.    Defendant seeks
reduction of his conviction to attempted robbery in the third
degree.
            At trial, the teller at a check cashing store testified
that defendant demanded money, told her repeatedly that he had a
gun, verbally threatened to shoot her, and "showed" her, by means
of a hand placed under his sweatshirt, that a gun was concealed
there.    When defendant was arrested in the vicinity, after
abandoning the robbery attempt, no firearm was recovered.
            The precise moment at which defendant placed one of his
hands under his hooded sweatshirt is not clear from the record.


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During her testimony, the teller physically demonstrated an
action performed by defendant or a pose assumed by him,
explaining that defendant "was doing this" and "showed me like
this," and that he thereby conveyed to her that he had a gun
underneath his sweatshirt.    Asked whether defendant had "reached
into his waistband" and "put one of his hands under his hoodie,"
she answered both questions in the affirmative.    However, the
teller was not expressly asked whether defendant placed his hand
under his sweatshirt after entering the store.
          Defendant moved to dismiss on the ground that the
teller's testimony had been "extremely vague" in regard to his
bodily stance or actions.    The trial court denied the motion,
citing People v Lopez, and reasoning that
          "although words alone cannot constitute
          display[ing] what appears to be a firearm,
          . . . the words spoken by [defendant]
          consistent with the physical display . . . in
          terms of his manipulations and his waistband
          . . . present a question of fact for the jury
          as to whether a reasonable person could
          perceive that there is the presence of a
          gun."
          The trial court instructed the jury on attempted
robbery in the first degree as well as the lesser included
offense of attempted robbery in the third degree.    Defendant did
not request a jury instruction on the affirmative defense to
robbery in the first degree or an instruction on robbery in the
second degree as a lesser included offense, and no such charge
was provided to the jury.    The jury found defendant guilty as


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                               - 4 -                          No. 23

charged.
           On appeal, defendant challenged his conviction on legal
sufficiency grounds.   The Appellate Division affirmed the trial
court's judgment, holding that "[t]he prosecution presented
sufficient evidence establishing that the defendant displayed
what appeared to be a firearm while attempting to commit a
robbery at a check-cashing store" (124 AD3d 918, 918 [2d Dept
2015]).
           A Judge of this Court granted defendant leave to appeal
(26 NY3d 1043 [2015]).   We now affirm.
                                II.
           A person is guilty of robbery in the first degree under
Penal Law § 160.15 (4)
           "when he [or she] forcibly steals property
           and when, in the course of the commission of
           the crime or of immediate flight therefrom,
           he [or she] or another participant in the
           crime . . . [d]isplays what appears to be a
           . . . firearm; except that in any prosecution
           under this subdivision, it is an affirmative
           defense that such . . . firearm was not a
           loaded weapon from which a shot, readily
           capable of producing death or other serious
           physical injury, could be discharged."
           The statute, enacted in 1969, "assumes that the object
consciously displayed as a firearm was what it appeared to be and
places on the defendant the burden of showing that it was not, in
which case he could only be convicted of the lesser, second
degree offense [Penal Law § 160.10 (2) (b)]" (Lopez, 73 NY2d at
220, citing People v Lockwood, 52 NY2d 790 [1980]; see also Mem


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                                - 5 -                           No. 23

in Support, Bill Jacket, L 1969, ch 1012, at 3).
           Defendant's principal argument may be summarized as
follows.   The victim did not testify with precision as to whether
defendant had his hand in his waistband from the beginning of the
encounter or placed it there while threatening to shoot her.
Therefore, defendant would have us conclude, a rational jury
could not have found beyond a reasonable doubt that defendant
performed an intentional act of displaying what appeared to be a
firearm.   Relatedly, defendant suggests that insofar as there is
no evidence that he created the appearance of a gun being
brandished or pointed toward the victim, the jury could not have
reasonably inferred that he displayed what appeared to be a
firearm.   In a secondary argument, defendant contends that the
People failed to prove that he consciously or deliberately
displayed what appeared to be a firearm.
                                III.
           The controlling precedent is People v Lopez.
Nevertheless, a review of the background predating Lopez is
informative.
           In People v Lockwood (1980), the defendant held an
object to the back of a gas station attendant's neck and
threatened to shoot him.    The jury heard testimony that the
defendant told the arresting officer that the object was a
toothbrush.    A toothbrush, and no gun, was found on the
defendant's person when he was arrested.    The defendant requested


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                               - 6 -                          No. 23

a jury instruction on the affirmative defense to robbery in the
first degree -- that the firearm displayed "was not a loaded
weapon from which a shot, readily capable of producing death or
other serious physical injury, could be discharged" (Penal Law
§ 160.15 [4]) -- and asked that the lesser included offense of
robbery in the second degree be charged.   The trial court denied
both requests, and submitted to the jury the charge of robbery in
the third degree as a lesser included offense.
            On appeal from his conviction of robbery in the first
degree, defendant Lockwood argued that, under the circumstances
of the case, it was reversible error for the trial court to
refuse his request to charge the jury regarding the affirmative
defense.   This Court agreed with the defendant and ordered a new
trial, reasoning that "[w]ithout the benefit of the requested
charge, the jurors may well have believed that defendant had
committed the robbery with a toothbrush, yet also believed that
it was their duty to find him guilty of robbery in the first
degree because the toothbrush which he displayed appeared to be a
pistol" (Lockwood, 52 NY2d at 792).
           Although we ruled that Lockwood should have been
permitted the requested instruction on the affirmative defense,
our decision contained an important observation.   As we
subsequently noted, this was "that even if defendant's statement
that he committed the robbery by holding a toothbrush in his coat
pocket to simulate a gun were accepted as true, he could still be


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guilty of displaying what appears to be a firearm, and would
succeed only in reducing his liability from first degree robbery
to second degree" (People v Baskerville, 60 NY2d 374, 381
[1983]).
           Later, we emphasized 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.   In People v Baskerville (1983), the robber wrapped a
towel around one of his arms, raised the arm, and pointed it at
one of his victims, while threatening to kill her.   There was
also testimony that a witness saw a black object inside the
towel, which she thought was a gun.    We set out a two-part test:
the People 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"
(Baskerville, 60 NY2d at 381; accord William C. Donnino, Practice
Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law §
160.00 at 12).1   We concluded that "[w]hen both of these
requirements are satisfied, . . . the true nature of the object


     1
          Notwithstanding the dissent's argument based on the
legislative history, we have long recognized that the victim's
fear of harm is significant in cases involving the use or
perceived threat of a firearm (see People v Hedgeman, 70 NY2d
533, 541 [1987] [describing the aggravating factors as
"reflect[ing] a concern for the added element of physical harm,
danger, and perceived threat of additional violence to the
victims of the robbery"]).

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                               - 8 -                          No. 23

displayed is, as concerns criminality, irrelevant" (Baskerville,
60 NY2d at 381 [citation omitted]).
          Baskerville did not address whether a defendant may be
guilty under the same statute if he or she does not display any
object that itself gives the appearance of a gun, but merely
covers a hand in such a way that it seems to be holding or
reaching for a gun.   Our decision in People v Lopez (1989) then
clarified the issue that had been left unresolved, and held that
the "object displayed" could be a hand.
          In Lopez, the defendant said "this is a stick up" and
demanded that the victim hand over a radio.   The victim testified
that Lopez simultaneously "put his hand in the right side of his
vest 'as if he had a gun'" (Lopez, 73 NY2d at 218).   The victim
surrendered the radio.   A jury found Lopez guilty of robbery in
the first degree under Penal Law § 160.15 (4), but the trial
court set aside the verdict, concluding that there was no
evidence of displaying what appeared to be a firearm because
"there was no proof that when the defendant placed his hand
inside his vest he 'made the shape of any object or that the
victim saw any object displayed'" (Lopez, 73 NY2d at 218).    The
Appellate Division reversed on the basis that although the
display of what appears to be a firearm "requires a display of
something that could reasonably be perceived as a firearm, there
is no requirement that the object . . . be anything other than
the defendant's hand" (People v Lopez, 135 AD2d 443, 443-444 [1st


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                                 - 9 -                          No. 23

Dept 1987] [internal quotation marks, citations, and brackets
omitted]).
            The Court of Appeals affirmed.   To sustain a conviction
for robbery in the first degree (Penal Law § 160.15 [4]), "[t]he
People must show that the defendant consciously displayed
something that could reasonably be perceived as a firearm, with
the intent of forcibly taking property, and that the victim
actually perceived the display" (Lopez, 73 NY2d at 220).    A mere
verbal threat is insufficient.    The Court held, however, that
"the object displayed need not closely resemble a firearm or bear
a distinctive shape," and may be an object "held inside a coat or
otherwise obscured," such as "[a] towel wrapped around a black
object, a toothbrush held in a pocket or even a hand consciously
concealed in clothing" (id. [citations omitted] [emphasis
added]).2
            The Lopez Court framed the governing standard as
follows.    A defendant displays what appears to be a firearm
within the meaning of Penal Law § 160.15 (4) "if under all the



     2
          The dissent argues that our interpretation of Penal Law
§ 160.15 does not comport with the plain meaning of the word
"display" and that if defendant had possessed a firearm hidden
under his sweatshirt it would naturally be described as
"concealed" rather than "displayed" (see dissenting op., at 2-3).
This objection conflates displaying what appears to be a firearm
with displaying a firearm. Even if defendant was attempting to
conceal the true nature of the item beneath his sweatshirt, i.e.,
his hand, he was in no way concealing from the teller that he had
something under his sweatshirt. On the contrary, he can fairly
be characterized as displaying the appearance of a firearm.

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                                - 10 -                        No. 23

circumstances the defendant's conduct could reasonably lead the
victim to believe that a gun is being used during the robbery"
(Lopez, 73 NY2d at 220).
          People v Mendez, a companion case to Lopez, was
resolved in the same opinion.    There, the defendant demanded that
the victim hand over everything he had on him, taking a watch,
chain, and cash.    Meanwhile, another man sat on a nearby stoop,
watching the robbery, with his right hand under his shirt.    The
victim testified that Mendez told the second man not to show or
take out the gun.   A jury found Mendez guilty of robbery in the
first degree, on the theory that a defendant may be held liable
for the acts of "another participant" who displays what appears
to be a firearm during the robbery (Penal Law § 160.15).    The
trial court and the Appellate Division rejected Mendez's argument
that the evidence was insufficient to establish that he or the
man on the stoop displayed what appeared to be a firearm.    This
Court, however, agreed with Mendez, holding that the conduct of
the man on the stoop was not sufficient to constitute displaying
what appeared to be a firearm, because the man did not "take any
action" showing that he had a firearm, but "[o]n the contrary,
throughout the robbery . . . simply sat on the stoop with his
hand under his shirt, literally on the sidelines, immobile,
inconspicuous and indifferent" (Lopez, 73 NY2d at 222).
          Our decision in Lopez was not unanimous.   The partial
dissent would have reversed in Lopez as well as in Mendez, and


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                               - 11 -                          No. 23

wrote that "the majority has replaced the requirement that there
be an actual display of some physical object appearing to be a
gun with the far less exacting requirement of some symbolic
gesture, other than speech, conveying nothing more than an
impression that the robber may have such a physical object"
(Lopez, 73 NY2d at 224-225 [Titone, J., dissenting]).    The
dissenting Judges would have held "that the 'display' element is
not satisfied absent proof that 'something,' be it a real gun, a
toy gun or even a toothbrush or hand concealed in a pocket, has
been brandished, pointed or poked at the victim" (id. at 226).
                                 IV.
            We reject defendant's assumption that the timing of the
moment at which the defendant places a hand under his clothing is
dispositive of the legal sufficiency analysis.    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.    Whether a defendant displays what appears to be a firearm
does not depend on when precisely the defendant begins the
display, provided it occurs "in the course of the commission of
the crime or of immediate flight therefrom" (Penal Law § 160.15
[4]).
            Our precedents are not to the contrary.   In particular,


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                              - 12 -                          No. 23

Mendez, the companion case to Lopez, does not stand for the
proposition that a person who, throughout an encounter with a
victim, leaves a hand concealed under clothing cannot be guilty
of robbery in the first degree.   The factual circumstances of
Mendez were unique in that the second man did not approach the
victim or signal involvement in the crime by any words or action.
          It is true that in describing the grounds of legal
sufficiency in Baskerville we observed that "[t]he evidence . . .
that the towel wrapped around the robber's arm concealed a black
object that appeared to one of the persons threatened to be a
gun, and that the robber raised his arm toward a person and
threatened to kill the person his arm was pointed at, was clearly
sufficient to establish that the robber displayed what appeared
to be a firearm" (Baskerville, 60 NY2d at 381-382).   However,
Baskerville does not require, in every case, that the defendant
perform an active movement perceived by the victim that makes it
appear that he has a gun.   Neither Baskerville nor Lopez
addresses the scenario in which a defendant who demands money
keeps a hand concealed in clothing throughout the encounter, and
no decision of this Court on point has been brought to our
attention.
          A related argument offered by defendant is that there
was no testimony that he used his hand to carry out a movement or
to create a bulge in his clothing to give the appearance that he
was pointing a gun at the teller or brandishing a firearm.    The


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                              - 13 -                           No. 23

contention, drawing on the Lopez dissent, is that a defendant
must make a pointing or waving movement or create some effect
with his hand, other than purposefully placing it inside his
clothing, in order to display what appears to be a firearm.     In
other words, defendant appears to argue that, for a hand to be
sufficient, the hand has to be used to simulate a gun, rather
than to simulate a hand holding a gun.
          This argument, however, is inconsistent with Lopez,
which upheld the conviction of a defendant who simply placed his
hand in one side of his vest as if he had a firearm (see Lopez,
73 NY2d at 221-222).   Moreover, the Lopez Court emphasized that
"the object displayed need not closely resemble a firearm or bear
a distinctive shape" (Lopez, 73 NY2d at 220).   The requirement
that a hand be manipulated to look like a gun is inconsistent
with our acceptance in Lopez that the thing displayed need not
have a gun-like shape.3
          Notably, defendant does not ask us to overrule Lopez.
Nor would we.   A rule such as the one outlined in the Lopez
dissent would have inadequate grounding in policy: there is
little reason to consider a robbery a graver crime if the victim
formed the impression that the perpetrator was pointing a gun, as



     3
          Contrary to the dissent, defendant is seeking reversal
on a basis that we hold to be "controlled by our prior decisions"
(dissenting op., at 2). While defendant seeks to distinguish
Lopez, we hold that Lopez is not distinguishable. However,
defendant does not seek to overturn that decision.

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                               - 14 -                         No. 23

opposed to the impression that the perpetrator was reaching for a
gun.   To the extent a court might consider pretending to point a
gun a more serious offense, such concerns are outweighed by the
impractical nature of a law that would often require testimony as
to the exact size, shape, and orientation of a bulge in a
defendant's vest or shirt.   By contrast, Lopez offers a clear
rule that has been followed consistently by the courts of this
State in numerous decisions for nearly 30 years (see e.g. People
v Williams, 100 AD3d 1444, 1445 [4th Dept 2012], lv denied 20
NY3d 1015 [2013]; People v Welsh, 80 AD3d 456, 456-458 [1st Dept
2011], lv denied 16 NY3d 864 [2011]; People v Mitchell, 59 AD3d
739, 740 [2d Dept 2009], lv denied 12 NY3d 918 [2009]); People v
Middleton, 247 AD2d 713, 713 [3d Dept 1998], lv denied 92 NY2d
856 [1998]; People v Avilla, 234 AD2d 45, 45 [1st Dept 1996];
People v Haney, 162 AD2d 613, 613-614 [2d Dept 1990], lv denied
76 NY2d 940 [1990]).
           Defendant's secondary argument concerning conscious
intent is not persuasive.    Certainly, the People were obliged to
prove that defendant "conspicuously and consciously conveyed the
impression" that he had a firearm (Lopez, 73 NY2d at 222).    Here,
the jury could have inferred from the testimony that defendant
held one of his hands under his sweatshirt, while telling his
victim that he had a gun, that he consciously intended to convey
that he had a gun.   Viewing the evidence in the light most
favorable to the People, the jury could rationally have inferred,


                               - 14 -
                                - 15 -                        No. 23

albeit circumstantially, that the hand placement was deliberate,
and designed to back up the verbal threat with the simulated
action of holding or reaching for a gun.
                                  V.
          The dissent argues that the Legislature, in enacting
the statute, was entirely concerned with "the evidentiary
difficulty of proving that an actual gun was loaded and operable"
(dissenting op., at 8).    Significantly, the dissent does not call
for Lopez to be overruled.    This is appropriate because Lopez
interpreted a statute, and this Court rarely overrules its own
interpretations of statutes, particularly where the defendant has
not asked us to do so.    However, the dissent’s conclusion on
legal sufficiency (see dissenting op., at 17) would require this
Court to overturn Lopez.
          Finally, we note that the affirmative defense to
robbery in the first degree is equally as available to an unarmed
robber who creates the impression of firearm possession as it is
to a robber who possesses an unloaded or inoperable firearm (see
Lockwood, 52 NY2d at 792).    "[R]obbery in the second degree is
the appropriate offense when, in fact, the defendant has simply
used his hand to create the impression he is armed with a gun.
However, the burden is on the defendant to prove this as an
affirmative defense at trial"    (Lopez, 73 NY2d at 222 n 2
[citations omitted]).    Defendant could have sought an instruction




                                - 15 -
                              - 16 -                        No. 23

on robbery in the second degree but failed to do so.4
          Defendant's challenge to the legal sufficiency of the
evidence against him fails.   The jury could have found beyond a
reasonable doubt that, under all the circumstances, defendant's
conduct could reasonably have led the victim to believe that a
gun was being used during the robbery (see Lopez, 73 NY2d at
220).
          Accordingly, the order of the Appellate Division should
be affirmed.




     4
          The dissent suggests that if a defendant had no
firearm-like object other than his hand, then "the proper offense
is third-degree attempted robbery" (dissenting op., at 17). This
would follow only on the dissent's theory of the statute. Under
Lopez, however, the appropriate offense is robbery in the second
degree if the People prove that defendant displayed what appeared
to be a firearm but defendant is able to prove that he had no
firearm (see Lopez, 73 NY2d at 219, 220, 222 n 2). Robbery in
the third degree (Penal Law § 160.05) is the proper offense only
when a defendant forcibly steals property and neither displaying
the appearance of a firearm nor any of the other aggravating
factors is present (see Lopez, 73 NY2d at 219).

                              - 16 -
People v Charles Smith
No. 23




ABDUS-SALAAM, J.: (concurring).
          I concur in the result on constraint of People v Lopez
(73 NY2d 214 [1989]).    I note, as do the majority and the
dissent, that defendant has not asked this Court to overrule
Lopez.




                                - 1 -
People v Charles Smith
No. 23




WILSON, J.(dissenting):
           A homeless man walks into a check-cashing store.    This
sounds like the start of a bad joke, but instead is filled with
pathos.   Charles Smith, with one hand covered by the bottom of
his hoodie, demanded money, eventually threatening to shoot the
cashier (who was behind bulletproof glass). He challenges his
first-degree attempted robbery conviction, on the ground that he
did nothing to "display[] what appears to be a pistol, revolver,
rifle, shotgun, machine gun or other firearm."     His conviction
for first-degree attempted robbery resulted in the imposition of
a 16-year-to-life prison sentence.1     That is not what the
legislature or Governor intended.     As the majority notes, Mr.
Smith does not ask us to reconsider or modify any of our prior
decisions interpreting Penal Law section 160.15.     Instead, he
seeks reversal on a ground not controlled by our prior decisions:
that an unarmed person who "makes no movements" of his or her
concealed hand while threatening the presence of a gun cannot be


     1
        Had Mr. Smith instead been convicted of attempted robbery
in the third degree, he would not have been classified as a
persistent violent felony offender (see Penal Law §§ 70.02 [1];
70.08). Attempted third-degree robbery is a class E felony (see
Penal Law §§ 110.05; 160.05), for which the maximum sentence
"shall not exceed four years" (Penal Law § 70.00 [2] [e]).

                               - 1 -
                               - 2 -                          No. 23

convicted for attempted robbery in the first degree.    Because
neither People v Lopez (73 NY2d 214 [1989]) nor any prior
precedent compels affirmance, I would not extend our prior
missteps by affirming here.
                                I.
          Over the years, our Court has erroneously broadened the
scope of the aggravating factor, "displays what appears to be a
. . . firearm," without regard for the legislature's actual
intent in enacting that language.    Neither the legislature nor
Governor Rockefeller intended that a defendant, who displayed no
object whatsoever during the commission of the crime, could be
convicted of attempted robbery in the first degree.
          In construing any statute, we must start with its plain
meaning and then, if unclear, examine its legislative history
(see Riley v County of Broome, 95 NY2d 455, 463-464 [2000];
Patrolmen's Benevolent Assn. of City of N.Y. v City of New York,
41 NY2d 205, 208 [1976]).   Here, the ordinary meaning of
"display" is to show or make something evident (see
Merriam-Webster Dictionary ["to put or spread before view," "to
make evident," or "to exhibit ostentatiously"]; see also Oxford
English Dictionary ["(to) put (something) in a prominent place in
order that it may readily be seen"]).    Stretching "display[] what
appears to be a firearm" to a situation in which nothing is shown
or made evident requires some proof that the legislature intended
that meaning, because it is unnatural.    In Mr. Smith's case, even


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                              - 3 -                           No. 23

if he had possessed a firearm hidden under his hoodie, we would
have referred to it as "concealed", not "displayed."    To reach
the conclusion that the legislature meant what, in common
parlance, would be the opposite of what it wrote (i.e.,
"displayed" included "concealed"), we would need legislative
history powerfully demonstrating that intent.    The legislative
history is completely to the contrary.
          Prior to 1969, an aggravated robbery charge -- armed
with a deadly weapon -- required the People to prove beyond a
reasonable doubt that a gun openly displayed during the crime was
loaded and operable (see People v Ahmed, 27 AD2d 729, 730 [1st
Dept 1967]; People v Gordon, 19 AD3d 828, 829 [2d Dept 1963]).
That task proved to be immensely difficult if the defendant never
fired a shot or was not quickly apprehended in possession of (or
otherwise tied to) the still-loaded firearm.    Accordingly, in
1969, the legislature amended New York's robbery statute to
address that specific evidentiary problem by adding "[d]isplays
what appears to be a . . . firearm" as an aggravating factor for
both first- and second-degree robbery (Penal Law §§ 160.10 [2]
[b]; 160.15 [4]; see L 1969, ch 1012).   Thus, "when a participant
in the [robbery] exhibits an object appearing to be a firearm,
then a presumption -- rebuttable, of course -- exists that such
participant [in the robbery] was armed with a deadly weapon"
(Sponsor's Mem, Bill Jacket, L 1969, ch 1012 at 3).    For
first-degree robbery, the amendment also made available an


                              - 3 -
                               - 4 -                         No. 23

affirmative defense that the firearm displayed was either
unloaded or incapable of being fired (see Governor's Approval
Mem, Bill Jacket, L 1969, ch 1012 at 17).
          The justification for the legislation, contained in the
bill jacket, stated: "The need for the presumption created by
this bill is a practical one" -- to help solve the problem
involving situations where "proof that the object displayed was,
in fact, a loaded weapon, is well-nigh-impossible to obtain"
(Sponsor's Mem, Bill Jacket, L 1969, ch 1012 at 3).    Likewise,
the Governor's memorandum accompanying the legislation described
the bill as one "to increase the penalties for robbery where
firearms are displayed" (Governor's Approval Mem, Bill Jacket, L
1969, ch 1012 at 17).   Governor Rockefeller stated:
"Specifically, the bill provides that a firearm displayed during
the commission of . . . a robbery is presumed to be loaded and
would constitute . . . Robbery in the First Degree" (id.
[emphasis added]).   He also noted that "[d]efendants charged with
such acts would be permitted to prove, as an affirmative defense,
that the firearm exhibited was either unloaded or incapable of
being fired," in which case the crime would be reduced to
second-degree robbery (id. [emphasis added]).   It is important to
note, as I discuss later, that neither the legislature nor the
Governor provided any indication that the enhancements provided
by the legislation were out of any concern for heightened fear by
the victim -- that rationale was belatedly created by our and


                               - 4 -
                              - 5 -                           No. 23

other courts.
          Additionally, both the New York State Temporary
Commission on Revision of the Penal Law and Criminal Code and the
Crime Control Council,2 writing in support of the bill,
consistently described the legislation as addressing the
evidentiary problem described above (see Letter from the New York
State Temporary Commission on Revision of the Penal Law and
Criminal Code, Bill Jacket, L 1969, ch 1012 at 5-6 ["(w)e
consider these amendments to be a reasonable and equitable
solution to a very serious law enforcement problem" involving the
"impossible (task of) prov(ing) that (the defendant) was 'armed'
when he (or she) committed the crime -- even if (the defendant)
has a loaded gun in his (or her) possession when apprehended)"];



     2
        The New York State Temporary Commission on Revision of
the Penal Law and Criminal Code (the Bartlett Commission), "an
arm of the State Legislature" (People v Petre, 151 Misc 2d 543,
546-547 [Sup Ct, Queens County 1991]), was created in 1961 upon
the recommendation of Governor Rockefeller and tasked with
"revis[ing] the penal law and determin[ing] the proper role and
function of sentencing" (Joshua Logan Pennel, Comment, The End of
Indeterminate Sentencing in New York: The Death and Rebirth of
Rehabilitation, 58 Buff L Rev 507, 512-513 [2010]). "The
legislature gave the Bartlett Commission carte blanche to develop
both a penal law and a complimentary sentencing structure" (id.
at 513). The Crime Control Council was created in 1967 to combat
a "steady increase in crime rate . . . through improved
coordination and cooperation of all the state agencies concerned
with law enforcement, criminal justice and post-adjudicatory
treatment of offenders" (L 1967, ch 167 at 708). It was "made up
of the heads of the state departments and agencies concerned with
the control of crime" and tasked with the duty of "advis[ing] and
assist[ing] the governor" in various ways in matters relating to
the control of crime (id.).

                              - 5 -
                              - 6 -                          No. 23

Mem by Chairman of the Crime Control Council, Bill Jacket, L
1969, ch 1012 at 9 ["(t)he bill . . . deals with the problem of
proof which occurs when a . . . robber displays what appears to
be a firearm" but does not discharge the weapon or is not
apprehended immediately afterwards so that "the prosecution is
generally unable to prove that the defendant was in possession of
a 'deadly weapon,' an element of robbery (in the) first
degree"]).
          Likewise, the State Police also described the
legislation's purpose as "neatly do[ing] away with the ancient
dilemma concerning loaded vs unloaded guns" (Mem by New York
State Police, Bill Jacket, L 1969, ch 1012 at 11).   The Honorable
Albert Rosenblatt, then Dutchess County District Attorney and
later a Judge of this Court, wrote to explain that the
legislation "deals with the operability of a gun (or whether it
was loaded) in the context of a robbery situation" (Letter from
Albert Rosenblatt, District Attorney of Dutchess County, Bill
Jacket, L 1969, ch 1012 at 15).   None of those statements
contains any suggestion that any part of the legislative intent
was to enhance penalties based on increased fear by the victim.3


     3
        The only support for the proposition that the legislation
in any way related to increased fear by the victim, if a weapon
were displayed, came from the State Administrator of the Judicial
Conference of the State of New York, who sent a letter suggesting
that the bill would "accomplish two good things" by (1)
recognizing "the additional element of fright caused by the
perpetrator's pretended possession of a firearm" and (2)
"assist[ing] in the proof of a case against a defendant who

                              - 6 -
                               - 7 -                           No. 23

           The difference in the statutory language for first- and
second-degree robbery in the 1969 legislation further underscores
the legislature's intent that the display of something that was
or looked very much like a real firearm was essential to
conviction under either prong of the statute.   Both section
160.10 (robbery in the second degree) and 160.15 (robbery in the
first degree) contain the exact same operative language: "A
person is guilty of robbery in the [first or second] degree when
he [or she] forcibly steals property and when . . . [he or she]
[d]isplays what appears to be a pistol, revolver, rifle, shotgun,
machine gun or other firearm" (Penal Law §§ 160.10 [2] [b],
160.15 [4]).   However, section 160.15 (first degree) allows the
defendant to prove, as "an affirmative defense that such pistol,
revolver, rifle, shotgun, machine gun or other firearm was not a
loaded weapon from which a shot, readily capable of producing
death or other serious physical injury, could be discharged," in
which case the conviction would be reduced to second-degree
robbery.
           The statutory language makes sense only in the context
of the legislative history: that the problem addressed by the



displayed an object during the perpetration of a crime" (Letter
from the State Administrator of the Judicial Conference of the
State of New York, Bill Jacket, L 1969, ch 1012 at 12). His
suggestion has no bearing on the legislature's or Governor's
intent; moreover, the State Administrator expressly stated that
"[t]his bill . . . ha[d] not been considered by the Judicial
Conference" (id.).

                               - 7 -
                                - 8 -                           No. 23

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.    Thus, the legislature modified the
definition of first-degree robbery to address situations where
something that was or looked very much like a real weapon was
displayed -- not because of the fear that might create, but to
address a problem of proof where a real firearm was very likely
used.    It would follow, then, that prosecutors would charge
second-degree robbery where, for example, the defendant was
apprehended during commission of the robbery and the firearm was
unloaded, or was a toy gun.    Without the guidance of the
legislative history, the amendment 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.
            Nevertheless, despite the clear intended purpose of the
statute as amended, our Court has, over the years, deviated from
the legislative intent without examining it in any detail.
                                III.
            I begin with People v Lockwood (52 NY2d 790 [1980]),
which the majority discusses, and whose holding is consistent
with the statutory language and legislative intent.    Lockwood's
holding does not concern the "displays what appears to be a
firearm" language, but rather the affirmative defense provided by
the legislation.


                                - 8 -
                                 - 9 -                       No. 23

          The sole issue raised on appeal to this Court in
Lockwood was whether Supreme Court erred in failing to instruct
the jury on the affirmative defense contained in section 160.15
(see Def's Brief & Appdx, at 2, available in New York Ct of App
Cases & Briefs, 1980, vol 398).    Mr. Lockwood did not raise the
issue of whether the use of a toothbrush out of the vision of the
victim (thrust into the back of his neck) constituted "display of
what appears to be a firearm".    In fact, as part of his defense
strategy, Mr. Lockwood's counsel conceded that Mr. Lockwood "had
used the toothbrush in a manner intended to make the toothbrush
appear to be a pistol" (id. at 16-17).   Thus, Lockwood's holding
is just that a defendant who requests and is refused an
instruction on the affirmative defense that the "weapon"
displayed was really a toothbrush (and hence "not capable of
being fired") is entitled to that instruction.   It contains no
holding on whether a toothbrush (or concealed hand) sufficiently
appears to be a firearm.4

     4
        Lockwood is precisely the kind of case the legislature
meant to reach through the 1969 amendments. After Mr. Lockwood
pressed something into the neck and side of his victim,
threatening to shoot him, two officers arrived while Mr. Lockwood
was rifling through the gas station's cash register (see People's
Brief, at 3, available in New York Ct of App Cases & Briefs,
1980, vol 398). An attendant at the gas station testified that
he was certain Mr. Lockwood had pressed a gun into the other
attendant's neck; one officer testified that Mr. Lockwood was
armed with what appeared to be a "silver handgun"; the other
officer testified that Mr. Lockwood was lifting his right hand
and pointing a silver or chrome object with a four-inch barrel at
him, which appeared to be a handgun (id. at 4). Mr. Lockwood
fled in his car and eluded the officers on the scene, but was

                                 - 9 -
                              - 10 -                           No. 23

           Both the majority here and prior decisions of our
Court, beginning with People v Baskerville (60 NY2d 374 [1983]),
misinterpret Lockwood's dicta and apply it as if it were a
holding.   In dicta, we stated: "If, of course, a defendant
successfully proves his affirmative defense, he may still be
found guilty of robbery in the second degree, which requires only
that the defendant forcibly steal property while displaying what
appears to be a firearm" (Lockwood, 52 NY2d at 792 n *).    That
dicta referred to "a defendant" generally -- not Mr. Lockwood,
and even if read to refer specifically to Mr. Lockwood, it arises
in a context in which Mr. Lockwood did not argue that his conduct
constituted no more than robbery in the third degree: he sought
and obtained reversal because of the refusal to charge on his
affirmative defense.
           Baskerville is where we made our first detour from the
legislature's intent, albeit in dicta.   Baskerville's holding --
that a black metal object wrapped in a towel, which the robber
raised and pointed at a victim accompanied by a threat to kill
her could constitute the "display of what appears to be a
firearm" -- concerns merely the sufficiency of facts showing that
the brandished item was something that appeared to be a firearm.
However, Baskerville included a rationale never advanced by the
legislature, one that later steered our Court astray in Lopez:



caught by officers in New Jersey about half an hour later, with
no gun in his possession (see id.).

                              - 10 -
                               - 11 -                             No. 23

the idea that the enhancement for first-degree robbery (or
attempted robbery) was related to increased fear by the victim.
In Baskerville we cited two "apparent justification[s]" for the
1969 legislation: (1) "the difficulty of proving when no shot was
fired that what appeared to be a weapon was in fact a weapon" and
(2) "the effect upon the victim put in fear of his or her life by
the display of what appeared to be a weapon" (60 NY2d at 381).
Although we cited authority for the first justification, we cited
nothing at all for the second.
          Here, the majority points to an observation made in
Baskerville concerning Lockwood -- namely, that even if Mr.
Lockwood had used a toothbrush to rob his victim, "he could still
be guilty of displaying what appears to be a firearm, and would
succeed only in reducing his liability from first degree robbery
to second degree" (maj opn, at 6).      That observation merely
recognized that, because Mr. Lockwood challenged only the failure
to give an instruction on his affirmative defense, his success in
proving his affirmative defense would have reduced his conviction
from first-degree to second.   It does not constitute a holding
that use of a toothbrush (or other item not remotely resembling a
firearm) would be sufficient to establish second-degree robbery.
          Baskerville compounded the dicta in Lockwood by adding
dicta concerning facts not present in Baskerville and rooted in
the fictional legislative concern for enhanced fear.      Thus, based
on the erroneous conclusion that part of the legislature's


                               - 11 -
                             - 12 -                           No. 23

purpose was to punish more severely threats that placed the
victim in greater fear for his or her life, and the misreading of
the dicta in Lockwood described above, we wrote: "[T]he display
of anything that appears to be [a firearm] though held inside a
coat or otherwise obscured, is covered by sections 160.10
[second-degree robbery] and 160.15 [first-degree robbery]. . . .
[T]he true nature of the object displayed is, as concerns
criminality, irrelevant" (60 NY2d at 381).    Of course,
Baskerville did not involve anything concealed under a coat, and
offered no support for the proposition that the legislature
intended that someone committing a robbery with a toothbrush
could be prosecuted for robbery in the first or second degree,
however fearful the victim might have been.
          Not until Lopez, however, did we reach a holding
(rather than dicta) incompatible with the statute: that although
"mere statements that a robber is armed with a gun" are
insufficient to establish robbery in the first or second degree
(73 NY2d at 221), Mr. Lopez's act of moving his hand inside his
vest constituted "display[] of what appears to be a pistol,
revolver, rifle, shotgun, machine gun or other firearm."    In
Lopez, we asserted that a "primary purpose[]" of the statute
"recognizes that the additional fear suffered by a robbery victim
confronted by what appears to be a firearm aggravates the nature
of the offense and warrants additional punishment" (id. at 220),
citing only Baskerville, which, as discussed above, cited


                             - 12 -
                             - 13 -                           No. 23

nothing, and is not what the legislature, Governor, and other
bodies responsible for the legislation said at the time.
          Indeed, with particular reference to the interpretation
of the statutory "display" requirement as reaching the conduct of
Mr. Lopez, who displayed no object at all, Lopez expressly relied
on the proposition that "the display element focuses on the
fearful impression made on the victim" (id.).   Based on that
fictional legislative intent, we wrote: "In light of the purpose
of the statutory scheme, the broad wording of the display
element, and the obligation to construe the Penal Law fairly to
carry out the legislative intent . . . , 'the display of anything
that appears to be such [i.e., a firearm], though held inside a
coat or otherwise obscured' . . . or even a hand consciously
concealed in clothing" constitutes first-degree robbery (id.,
quoting Baskerville, 60 NY2d at 381).5
          In People v Mendez, decided with Lopez, we either
decided that some movement of the apparent weapon was required to
meet the display requirement, or did not resolve that issue.    In



     5
        Lopez was a 4-3 decision. The dissent adopted the same
erroneous conclusion, relying solely on Baskerville, that part of
the legislature's intent in enacting the display requirement was
"to increase the penalty for putting the victim in fear for his
or her life" (Lopez, 73 NY2d at 223 [Titone, J., dissenting]).
Consequently, it is not the case that the majority in Lopez
considered and rejected the position expressed in my dissent.
Rather, the incongruities noted by the dissent provide further
evidence that, quite apart from what the legislature and Governor
said they meant, they could not have meant to convict an unarmed
person of robbery in the first degree.

                             - 13 -
                              - 14 -                          No. 23

Mendez, the defendant was standing near a stoop where another man
was sitting, with "his hand under his shirt" (id. at 219).    As
the victim passed by, the defendant assaulted him, robbed him of
a watch, chain, and $80, and told the man sitting on the stoop
"don't show him the gun" or "don't take out the gun" (id.).    The
man on the stoop "watch[ed] the robbery with his right hand under
his shirt," after which the defendant and seated man both fled
(id.).   We held that the defendant's first-degree robbery
conviction had to be reduced to third-degree robbery, because
"the man on the stoop did not actively participate in the
robbery, nor did he display a weapon or take any action
indicating that he had one" (id. at 222).   It is unclear whether
our holding rested on the lack of evidence that the man on the
stoop was involved in the robbery, or that the lack of a movement
by the man on the stoop meant that nothing had been "displayed."
Thus, Mendez either has decided that some movement is necessary
to meet the "display" requirement (which would require us to
reduce Mr. Smith's conviction to third-degree attempted robbery),
or else did not reach that issue, in which case it is now
presented by this appeal.
                                IV.
          I turn, then, to the record evidence in this case.    On
the morning of November 1, 2011, Mr. Smith, a homeless
41-year-old, entered a check-cashing store in Queens, where Ms.
Almeida was working.   She was the only employee there, and was


                              - 14 -
                              - 15 -                          No. 23

separated from Mr. Smith by bulletproof glass.    Ms. Almeida, the
only witness to Mr. Smith's conduct, testified that he entered
the store, asked for money, stayed approximately 10 minutes, and
then said he had a gun.   Ms. Almeida pressed a silent alarm; Mr.
Smith walked out of the store about five minutes later and was
apprehended several minutes later, walking down the street about
eight blocks away.
          Ms. Almeida's trial testimony does not establish that
Mr. Smith made any sort of movement of his hoodie-covered hand
the entire time he was in the store.    The prosecutor asked Ms.
Almeida a series of questions concerning "what [Mr. Smith was]
doing, if anything, with his hands."    She repeatedly described
the defendant as "holding" his hand under the bottom of his
hoodie, which the trial judge described as "under the shirt at
the waist."   She further testified, "I don't know whether he was
holding or not.   I was not able to see anything . . . ."
          On cross-examination, Ms. Almeida repeated several
times her description of the defendant as "holding" his hand
under his hoodie "all the time" he was in the store.    Defense
counsel specifically asked, "Would it be fair to say he reached
under his hoodie?"   Ms. Almeida decidedly responded, "No.   He was
like this, like (indicating) . . . ."    Defense counsel asked
again, "So he lifted his hoodie up?"    Ms. Almeida responded, "The




                              - 15 -
                               - 16 -                         No. 23

hoodie was like this (indicating). . . . Covering his hand."6
            The People interpret the record evidence as
demonstrating no movement of Mr. Smith's concealed hand while
inside the check-cashing store (see e.g. Resp's App Div Brf, at
4-6 ["all while holding his hand under his shirt at his waist";
"threats made while he had his hand deliberately and
strategically placed under his sweatshirt at his waist"; "he held
it under his shirt, at his waist"; "defendant's own conduct in
holding his hand under his shirt at his waistband"]; 12 ["(Ms.)
Almeida testified that defendant 'was holding something' under
his shirt at his waist and she demonstrated for the jury how he
held his hand under his hooded sweatshirt"]; 14 ["defendant held
his hand in his sweatshirt at the waist"]).
            The majority concedes that it is unclear whether Mr.
Smith placed his hand under his sweatshirt before or after
entering the store.    In any event, Ms. Almeida repeatedly stated
that Mr. Smith held his hand under his sweatshirt and, when
specifically asked if he reached under his hoodie, she responded,
"No."    When Mr. Smith was arrested a few minutes after leaving


     6
        Immediately after that, defense counsel asked, "Would it
be his right hand or left hand, he put one of his hands under his
hoodie," to which Ms. Almeida responded, "Exactly." In context,
it is not possible to read "he put" as describing motion observed
by her; Ms. Almeida had specifically and repeatedly described Mr.
Smith as "holding," and expressly denied that Mr. Smith had
reached under or lifted up his hoodie. It is clear the question
focused on Ms. Almeida's inability to remember which hand Mr.
Smith had under his hoodie, not whether she observed him putting
it anywhere or moving it.

                               - 16 -
                              - 17 -                           No. 23

the store, the officers frisked Mr. Smith and found "[n]othing."
           Nothing in the record suggests that Mr. Smith possessed
any item whatsoever, let alone an object that appeared to be a
firearm.   The only witness to the crime testified that she did
not see a gun -- or, for that matter, anything at all.
Accordingly, the evidence is legally insufficient for a jury to
reasonably conclude that Mr. Smith displayed what appeared to be
a firearm.
           It is no answer that Mr. Smith might have been able to
avoid a conviction for first-degree attempted robbery by seeking
an instruction on the affirmative defense, thereby reducing his
conviction to second-degree attempted robbery, for two reasons.
First, and most fundamentally, the State bears the burden to
prove every element of the offense beyond a reasonable doubt, and
"displaying what appears to be" a firearm is an element of both
first- and second-degree robbery.   If, as seems clear, the
legislature did not intend that the verbal threat of a firearm
coupled with a concealed hand would count as "display," the State
has not met its burden.   Shifting that burden to a defendant, so
that she or he must disprove an element of the offense, is cold
comfort.   Second, because "display" is an element of both first-
and second-degree attempted robbery, absent a display, the proper
offense is third-degree attempted robbery, not second.
           There may not be much of a principled distinction
between someone who moves a hand into his or her pocket while


                              - 17 -
                                       - 18 -                               No. 23

announcing the possession of a firearm and someone whose
concealed hand is motionless while he or she claims to have a
gun.       But there is also no principled distinction between someone
who threatens to shoot when his or her hands are visible and not
moving towards anything (which cannot constitute first- or
second-degree robbery), and someone who moves his or her hand
towards a pocket while threatening to shoot (which Lopez
erroneously holds is first-degree robbery).
                 In any event, the legislature clearly intended that
neither of those would constitute first-degree robbery.
Affirmance here is not compelled by stare decisis, and adherence
to the clear intent of the legislature and Governor is more
important than pursuing our mistaken course to its end.7                I
therefore respectfully dissent.
*   *        *     *   *   *   *   *     *      *   *   *   *   *   *       *   *
Order affirmed. Opinion by Judge Fahey. Chief Judge DiFiore and
Judges Rivera, Stein and Garcia concur. Judge Abdus-Salaam
concurs in result in a separate concurring opinion. Judge Wilson
dissents in an opinion.

Decided March 28, 2017




       7
        Because we have deviated quite a way from the
legislature's intent, "the [l]egislature's competency to correct
the misinterpretation is readily at hand" (People v Hobson, 39
NY2d 479, 489 [1976] [internal quotation marks omitted]) to
restore its original purpose that demonstrably unarmed robbers
are treated differently from those with firearms.

                                       - 18 -
