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DEFENDANT, WHO WAS CHARGED WITH FIRST DEGREE ROBBERY, PRESENTED NO EVIDENCE THE BB GUN DISPLAYED DURING THE ROBBERY WAS NOT CAPABLE OF CAUSING DEATH OR SERIOUS INJURY; THEREFORE THE TRIAL JUDGE PROPERLY REFUSED TO INSTRUCT THE JURY ON THE “DISPLAYED-WEAPON-COULD-NOT-CAUSE-DEATH-OR-SERIOUS-INJURY” AFFIRMATIVE DEFENSE; A THREE-JUDGE DISSENT ARGUED THAT, BECAUSE IT WAS UNCONTROVERTED THAT DEFENDANT DISPLAYED A BB GUN, SECOND DEGREE ROBBERY WAS THE ONLY AVAILABLE CHARGE (CT APP).

The Court of Appeals, affirming the Appellate Division on different grounds, in a full-fledged opinion by Judge Troutman, over a three-judge dissent, determined the trial judge properly refused to instruct the jury on the affirmative defense that the weapon displayed by defendant during the robbery was not capable of causing death or serious injury. Defendant had displayed BB gun during the robbery and was charged with first degree robbery. The dissent argued that, because it was uncontroverted that defendant displayed a BB gun, second degree robbery is the only available charge. Penal Law 160.15(4) provides “A person is guilty of robbery in the first degree when he forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime:* * * [d]isplays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in any prosecution under this subdivision, it is 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. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree … .”:

​​… [T]he court properly denied [defendant’s] request to charge the jury on the affirmative defense. “When a defense declared by statute to be an ‘affirmative defense’ is raised at a trial, the defendant has the burden of establishing such defense by a preponderance of the evidence” (Penal Law § 25.00 [2]). The court must charge the affirmative defense to robbery in the first degree when, viewing the evidence in the light most favorable to the defendant, there is “sufficient evidence for the jury to find by a preponderance of the evidence that the elements of the defense are satisfied, i.e., that the object displayed was not a loaded weapon [readily] capable of producing death or other serious physical injury” … . BB guns are capable of producing injury, including but not limited to protracted impairment of vision … . Whether a particular BB gun is “readily capable” of doing so is not a question that we can decide as a matter of law … .

Here, although defendant made a prima facie showing that the object he displayed during the robbery was a BB gun that the police recovered from his home, he presented no evidence concerning the capabilities of that particular gun. Given the absence of such evidence, “the members of the jury could do no more than speculate that defendant’s gun was not [readily] capable of causing death or other serious physical injury, and thus the court properly denied defendant’s request to submit the issue to them” … . People v Smith, 2025 NY Slip Op 07082, CtApp 12-18-25

Practice Point: When a defendant seeks a jury instruction on an affirmative defense, the defendant has the burden to establish the defense by a preponderance of the evidence. Here the defendant argued the BB gun he displayed during the robbery could not cause death or serious injury and he was therefore entitled to a jury instruction on the “displayed weapon could not cause death or serious injury” affirmative-defense to first degree robbery. But because defendant presented no evidence on the capabilities of the BB gun, the Court of Appeals held the defendant did not meet his burden of proof and the trial judge properly denied the request for the affirmative-defense jury instruction.​

 

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