The First Department reversed defendant’s attempted robbery conviction, despite the lack of preservation of the error, because the jury charge did not make it clear that defendant must possess a dangerous instrument. The store clerk testified defendant had a knife and threatened him with it. However the exchange where the knife was allegedly brandished was not captured on the imperfect video and no knife was subsequently found by the police:
Defendant does not dispute that he failed to preserve his objection to the jury charge on attempted robbery. Accordingly, he asks us to exercise our interests-of-justice jurisdiction to reach the issue. There is precedent for exercising such jurisdiction in cases where a jury instruction was “manifestly incorrect” … . Defendant urges us to follow that precedent, arguing that the jury charge misstated the elements of the crime of first degree robbery. Defendant is correct in this regard. On its face, Penal Law § 160.15(3), under which defendant was charged, would appear to require conviction even if a person threatened to use a dangerous instrument that he did not in fact possess. However, the requirement for actual possession is an essential element that has been judicially engrafted onto the statute … . The People argue that the court technically issued a correct charge, because the CJI pattern jury instruction for “Attempt to Commit a Crime” provides for the court to merely “read [the] statutory definition of [the completed] crime and any defined terms as set forth in CJI for that crime” (CJI 2d [NY] Penal Law § 110.00). Because the statutory definition of robbery in the first degree does not, as stated above, require actual possession, they argue, the court’s instruction cannot be criticized. We reject this reasoning, because it reads out of the CJI instruction the words “as set forth in CJI for that crime” (id.). The current version of the CJI charge for Penal Law § 160.15(3) expressly refers to the possession requirement by stating, in pertinent part:
“In order for you to find the defendant guilty of this crime, the People are required to prove, from all the evidence in the case beyond a reasonable doubt, both of the following two elements: 1. That on or about (date), in the county of (county), the defendant, (defendant’s name), forcibly stole property from (specify); and 2. That in the course of the commission of the crime [or of immediate flight therefrom], the defendant [or another participant in the crime] possessed a dangerous instrument and used or threatened the immediate use of that dangerous instrument” (CJI 2d [NY] Penal Law § 160.15 [3]) (emphasis added). People v Saigo, 2017 NY Slip Op 04237, 1st Dept 5-30-17
CRIMINAL LAW (THE ABSENCE OF AN ESSENTIAL ELEMENT OF ATTEMPTED ROBBERY FIRST DEGREE, ACTUAL POSSESSION OF A DANGEROUS INSTRUMENT, FROM THE JURY CHARGE REQUIRED REVERSAL IN THE INTERESTS OF JUSTICE)/APPEALS (CRIMINAL LAW, ERRONEOUS JURY CHARGE, INTERESTS OF JUSTICE REVERSAL, THE ABSENCE OF AN ESSENTIAL ELEMENT OF ATTEMPTED ROBBERY FIRST DEGREE, ACTUAL POSSESSION OF A DANGEROUS INSTRUMENT, FROM THE JURY CHARGE REQUIRED REVERSAL IN THE INTERESTS OF JUSTICE)/JURY INSTRUCTIONS (CRIMINAL LAW, (THE ABSENCE OF AN ESSENTIAL ELEMENT OF ATTEMPTED ROBBERY FIRST DEGREE, ACTUAL POSSESSION OF A DANGEROUS INSTRUMENT, FROM THE JURY CHARGE REQUIRED REVERSAL IN THE INTERESTS OF JUSTICE)/ROBBERY (THE ABSENCE OF AN ESSENTIAL ELEMENT OF ATTEMPTED ROBBERY FIRST DEGREE, ACTUAL POSSESSION OF A DANGEROUS INSTRUMENT, FROM THE JURY CHARGE REQUIRED REVERSAL IN THE INTERESTS OF JUSTICE)