Summary
In People v. Hilton (145 A.D.2d 352), this Court reversed a conviction of first-degree robbery under Penal Law § 160.15(3) where the evidence established that the defendant, with his hand in his pocket as if he were holding a handgun, told the victim-witness that he had a gun and threatened to kill her and her daughter if his demands for money were not met.
Summary of this case from People v. PeraltaOpinion
December 20, 1988
Appeal from the Supreme Court, New York County (Richard Carruthers, J.).
On appeal, defendant argues, inter alia, that the lower court erred when it discharged, without sufficient reason, a sworn juror during the trial. We agree. Accordingly, defendant's conviction must be reversed and a new trial ordered. (See, e.g., People v Anderson, 70 N.Y.2d 729, 730.)
CPL 270.35 only permits dismissal of a sworn juror when that juror is found to be "grossly unqualified". The Court of Appeals has made it clear that while a court should "'"lean toward disqualifying a prospective juror of dubious impartiality"'" during voir dire, dismissal of a sworn juror is an entirely different matter and may only be done when "'it becomes obvious that a particular juror possesses a state of mind which would prevent the rendering of an impartial verdict'" (People v Buford, 69 N.Y.2d 290, 298, quoting from People v Blyden, 55 N.Y.2d 73, 78, and dissenting opn of Mahoney, P.J., in People v West, 92 A.D.2d 620, 622, respectively; CPL 270.20 [b]). The Court of Appeals has explained further that in conducting an analysis of whether a sworn juror meets the rigorous "'grossly unqualified'" standard "the trial court may not speculate as to the likelihood of partiality, but rather, must be convinced, after a probing and tactful inquiry, that the sworn juror will be unable to deliberate fairly and render an impartial verdict". (People v Cargill, 70 N.Y.2d 687, 688-689; see, People v Anderson, supra; People v Buford, supra, at 298.)
Here, the discharge was unsupported by any objective indicia of juror partiality. To the contrary, the juror stated unequivocally that her contact with a defense witness, which involved a single, fleeting encounter at a party 15 to 16 years prior to trial, would "definitely" not affect her ability to sit as a juror. (Cf., People v Buford, supra, at 299-300.) Nor was the discharge supported by the "tactful and probing inquiry" required by People v Anderson (supra, at 730) and People v Cargill (supra). Indeed, in reaching its decision to discharge the juror, the court stated that it had no way of assessing the juror's bias.
Moreover, the court applied a standard other than "grossly unqualified" as mandated by CPL 270.35. This is apparent from the court's erroneous ruling that jurors who had "prior contact with any of the witnesses" must, on that basis, be excluded (but see, People v Rentz , 67 N.Y.2d 829, 830 ) and by the court's inappropriate comparison of the standard used to dismiss a sworn juror with dismissal of a juror during voir dire. (See, People v Buford, supra, at 298.)
Upon this record, we find that the juror was improperly discharged. In that regard, we note that the People's claim that this error was not preserved for review is without support in the record which establishes that defense counsel satisfied the requirements of CPL 470.05 (2) by clearly and specifically stating that she objected to the People's motion to dismiss the juror and that such objection was premised on the fact that the minimal contact between the juror and the witness did not warrant disqualification. She need not have said more. (Cf., People v Fleming, 70 N.Y.2d 947; People v Love, 57 N.Y.2d 1023; People v West, 56 N.Y.2d 662.)
Also at issue on this appeal is whether the People met their burden of proving that defendant used or threatened the use of a dangerous instrument as required for a conviction under Penal Law § 160.15 (3). We are persuaded that this burden was not met.
At trial, Cheryl Simmons testified that when she opened the door to her mother's apartment, she saw a man standing an arm's length away from her with his hand pointing forward in his pocket. According to Cheryl, the man claimed to have a gun and threatened to kill her and her daughter unless his demands for money were promptly met. Neither Cheryl nor any of the other victims, however, saw a weapon during the incident. Nor was any testimony ever elicited that a weapon was fired or recovered.
Penal Law § 160.15 (3) states that a person commits robbery in the first degree when he forcibly steals property and during the course of the commission of the crime "uses or threatens the immediate use of a dangerous instrument". "Dangerous instrument" is defined by Penal Law § 10.00 (13) as "any instrument * * * which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury." Thus, to sustain a conviction under section 160.15 (3), the prosecution must affirmatively prove that the accused "actually possessed a dangerous instrument at the time of the crime", readily capable of causing death or serious physical injury. (People v Pena, 50 N.Y.2d 400, 407, cert denied 449 U.S. 1087.) Hence, where the dangerous instrument alleged is a gun, the People must prove that the gun was loaded and operable. (See, People v Iglesias, 40 A.D.2d 778; accord, People v Colavito, 126 A.D.2d 554 [2d Dept], affd on other grounds 70 N.Y.2d 996; People v Robare, 109 A.D.2d 923, 924 [3d Dept]; contra, People v Taliaferro, 109 A.D.2d 943, 944 [3d Dept]; People v Madeo, 103 A.D.2d 901 [3d Dept].) Therefore, proof that a gun merely was displayed is insufficient. (People v Iglesias, supra, at 778-779.) The mere display of a weapon constitutes a violation of Penal Law § 160.15 (4) which involves the use of "what appears to be a * * * gun". That subdivision, however, was absent from defendant's indictment.
Since we find that the People failed to prove by sufficient evidence that defendant actually possessed a loaded and operable firearm, his conviction for first degree robbery pursuant to Penal Law § 160.15 (3) cannot stand and count two of the indictment must, therefore, be dismissed. This dismissal, however, is with leave to the People to re-present any appropriate charges to another Grand Jury. (See, People v Gonzalez, 61 N.Y.2d 633, 635; People v Mayo, 48 N.Y.2d 245, 249-250, n 2; People v Rodwell, 100 A.D.2d 772, 773.)
We have reviewed defendant's other arguments and find them to be without merit.
Concur — Sullivan, J.P., Carro, Milonas, Rosenberger and Wallach, JJ.