You are here: / / ROBBERY FIRST REDUCED TO ROBBERY SECOND BECAUSE A THREAT TO USE A GUN IS...
,

ROBBERY FIRST REDUCED TO ROBBERY SECOND BECAUSE A THREAT TO USE A GUN IS NOT “DISPLAY” OF A GUN; “POSSESSION OF A FORGED INSTRUMENT” COUNTS VACATED BECAUSE THE WARRANTLESS SEARCH OF DEFENDANT’S WALLET WAS IMPROPER (SECOND DEPT).

The Second Department determined the robbery first conviction must be reduced to robbery second because defendant’s alleged verbal threat to use a gun was not accompanied hand movement or display of a weapon. In addition, the warrantless search of defendant’s wallet was improper and the related “possession of a forged instrument” counts were vacated:

“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'”… . “[I]t is the ‘display’ of what appears to be a firearm, and not the mere threat to use one, which is required” … . “A mere verbal threat is insufficient” as the words must be accompanied by some affirmative action appealing to one or more of the victim’s actual senses … . Here, the witness, whose dry cleaning store had been robbed on an earlier occasion, while testifying that the defendant threatened to use the “gun again,” denied seeing him make any motions with his hands. …

… [D]efendant’s conviction of criminal possession of a forged instrument in the third degree under counts 44 and 45 of the indictment must be vacated. The defendant’s wallet was improperly searched at the time of arrest … , rather than later as part of a “stationhouse inspection of an arrestee’s personal effects” … . People v Costan, 2021 NY Slip Op 04760, Second Dept 8-25-21

 

You might also like
AS LONG AS PLAINTIFF TAKES SOME ACTION THAT WOULD LEAD TO ENTRY OF A DEFAULT JUDGMENT WITHIN ONE YEAR AND NINETY DAYS OF THE DEFAULT, THE ACTION SHOULD NOT BE DISMISSED AS ABANDONED (SECOND DEPT).
MEMBERSHIP IN LIMITED LIABILITY COMPANY CAN BE REACHED BY A JUDGMENT CREDITOR; CHARGING ORDER, RATHER THAN ASSIGNMENT OF THE MEMBERSHIP INTEREST TO THE CREDITOR, IS AN APPROPRIATE REMEDY.
DEFENDANT DEPRIVED OF HIS RIGHT TO COUNSEL WHEN DEFENSE ATTORNEY INDICATED THERE WAS NO BASIS FOR DEFENDANT’S REQUEST TO WITHDRAW HIS PLEA.
IN THIS FORECLOSURE ACTION, THE REFEREE’S AFFIDAVIT DID NOT LAY A PROPER FOUNDATION FOR ALL THE DOCUMENTS RELIED UPON; THEREFORE THE REFEREE’S REPORT SHOULD NOT HAVE BEEN CONFIRMED (SECOND DEPT).
OKAY FOR BANK TO SUBMIT RENEWED POWER OF ATTORNEY IN REPLY PAPERS, POWER OF ATTORNEY SUBMITTED WITH MOTION PAPERS HAD APPARENTLY EXPIRED AND DEFENDANTS RAISED THE ISSUE IN ANSWERING PAPERS (SECOND DEPT).
CHILD’S STATEMENTS ABOUT RESPONDENT PROPERLY EXCLUDED FROM NEGLECT PROCEEDING INVOLVING A DIFFERENT CHILD, NO SHOWING RESPONDENT WAS LEGALLY RESPONSIBLE FOR THE CHILD WHO MADE THE STATEMENTS.
THERE ARE SUBSTANTIVE QUESTIONS OF FACT ABOUT THE NATURE OF THE AGREEMENTS BETWEEN PLAINTIFF EMPLOYER AND DEFENDANT EMPLOYEE RE: THE SALE OF DEFENDANT’S TAX PREPARATION BUSINESS TO PLAINTIFF AND WHETHER DEFENDANT SOLD HER CLIENT LIST TO PLAINTIFF; PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION ENFORCING THE RESTRICTIVE COVENANT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
PLAINTIFF SUED BOTH THE COUNTY AND THE SHERIFF FOR ALLEGED EXPOSURE TO CONTAMINATED WATER IN THE SHOWER AT THE JAIL; THE ACTION AGAINST THE COUNTY WAS NOT BROUGHT UNDER A VICARIOUS LIABILITY THEORY (THE COUNTY IS NOT VICARIOUSLY LIABLE FOR THE ACTS OR OMISSIONS OF THE SHERIFF); RATHER THE CAUSE OF ACTION ALLEGED THE COUNTY WAS NEGLIGENT IN ITS OWN RIGHT (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

PLAINTIFF IN THIS FORECLOSURE ACTION DID NOT PRESENT SUFFICIENT PROOF OF COMPLIANCE... THE DEFENSE REQUEST TO PRESENT THE GRAND JURY TESTIMONY OF AN UNAVAILABLE WITNESS...