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FAILURE TO INSTRUCT THE JURY ON THE MEANING OF ‘DEPRIVE’ WITH RESPECT TO THE LARCENY ELEMENT OF ROBBERY REQUIRED REVERSAL OF DEFENDANT’S FELONY MURDER AND CRIMINAL POSSESSION OF A WEAPON CONVICTIONS (FIRST DEPT).

The First Department, reversing defendant’s felony murder and criminal possession of a weapon convictions, determined that the jury should have been instructed on the definition of “deprive” with respect to the larceny aspect of the underlying robbery:

In connection with the larceny element of attempted robbery, the offense underlying the felony murder charge, the court, upon defense counsel’s request, should have instructed the jury on the definition of “deprive” … . The failure to so charge the jury as requested constitutes reversible error, since such omission “could have misled the jury into thinking that any withholding, permanent or temporary, constituted larceny”… . Indeed, “the concepts of deprive’ and appropriate’ . . . are essential to a definition of larcenous intent’ and they connote a purpose . . . to exert permanent or virtually permanent use thereof'” … . It is the function of the jury to determine whether defendant intended to rob the victim and permanently keep the property taken from him. By failing to give the requested charge, the court usurped that function.

While there are some cases in which the court’s omission of the definition of a term or terms may constitute harmless error, under the facts of this case, the error was not harmless … . People v Ataroua, 2019 NY Slip Op 00197, First Dept 1-10-19

 

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