by
James Eckert, Assistant Monroe County Public Defender

Is a note saying "gimme all your money, I have a gun" legally sufficient to prove robbery while in actual possession of a firearm readily capable of causing death or other serious physical injury?

That is the question considered by the the Court of Appeals in, People v Grant (_NY3d_ [10/20/11) at (see). Grant dealt with a reduction based on Grand Jury minutes, wherein the only proof of the existence of a gun and its capacity to cause serious physical injury or death was a note threatening the bank teller, saying that the defendant had a gun and if she didn't give him the money he'd shoot. We're not talking trial proof. Four judges of the Court of Appeals held that a note saying the defendant had a gun was not prima facie evidence of the actual existence and possession of a gun readily capable of shooting anyone.
First degree robbery, subdivision three, requires that defendant "actually possessed a dangerous instrument at the time of the crime". PL 160.15(3) reads "uses or threatens the immediate use of a dangerous instrument". It is subdivision four which allows a robbery conviction for possession of a finger, if that finger "appears to be a pistol, revolver ...". Subdivision three has been held to require an actually existing weapon (People v Pena, 50 NY2d 400 [1980]). In Pena, defendant had a paper bag over his hand and threatened to shoot. When apprehended shortly after, Pena had the bag, which contained a knife. The Court of Appeals ruled that under subdivision three "it was the employment of such an instrumentality that was significant" (Pena, footnote 2). The Court held that the proof showed that Pena had a knife at the time of the robbery and that he used that knife to threaten the victim. Apparently, nobody understood how knives worked back in 1980.

Nonetheless, as the majority noted in Grant, all four departments interpreted Pena to mean that a defendant, under 160.15(3), had to actually possess an actual weapon. A mere threat to harm someone with a weapon is not sufficient. Thus, the defendant's statement that he has a gun, without other proof of actual possession, is insufficient to prove the existence of such a gun. "Absent some other corroboration that defendant actually possessed a dangerous instrument" the grand jury could not rationally have drawn the guilty inference. The dissenters were prepared to hold that actual possession was not required, except the prosecution abandoned that position on appeal! Nonetheless, the dissent would have held that defendant's "admission" (I'd call it a mere claim coupled with ample incentive to lie) was sufficient to prove the fact admitted. Further, the dissent would have held that the defendant's threat to shoot was sufficient proof of operability which would have, if unexplained and uncontradicted, permitted a jury to convict (effectively shifting the burden to the defense). The dissent was willing to admit that some threats could be too vague to sustain the grand jury, much less a conviction (e.g. "if you don't keep your dogs quiet I'm going to destroy the earth" might be insufficient to prove possession of a fully operational Death Star).

The Grant decision has application beyond robbery first under subdivision three. If the defendant's admission of a fact is, without more, insufficient proof of that fact even at Grand Jury, then we should be looking for and challenging the absence of corroboration in other areas.