New York Robbery in the First Degree: What Constitutes “Displaying” a Firearm or Gun Under New York Criminal Law

Robbery in the First Degree is one of the most serious and violent crimes in the New York Penal Law handled by both prosecutors and New York criminal lawyers. In fact, if you threaten the use of force to take property and you possess a firearm or gun, then your crime is a “B” felony punishable by a minimum of five years in state prison and a maximum of twenty five years for a first time offender. It is important to note that to be convicted of this crime you need not actually possess this firearm. Instead, you need only to “display[] what appears to be…a firearm” to be convicted of New York Penal Law 160.15(4). This entry will address a recent New York State First Department Appellate Division decision addressing what actions constitute and are sufficient to establish “display[ing] what appears to be…a firearm.”

In People v. Douglas Welsh, indictment number 2963/2008, the defendant was convicted after testimony from a restaurant employee that the defendant entered the premises and demanded money from the cash register or he would shoot the employee in the face. Further testimony revealed that the defendant collected money and gestured with one hand while the other hand was bent at the elbow and stayed in the same position as if something (a gun) was being held waist level. Moreover, the employee could not see that hand at waist level because it was behind the counter. After trial, the defendant was convicted of Robbery in the First Degree under the subsection above for displaying what appeared to be a firearm. The defendant appealed from that conviction arguing that the evidence was not sufficient to establish that he displayed what appeared to be a firearm.

Continue to the second page for the relevant portion of the Court’s decision.
Although Penal Law §160.15(4) defines the crime as “[d]isplay[ing] what appears to be a…firearm” (emphasis added), case law makes clear that the victim of the robbery need not actually see the firearm, or even its outline or bulk. The Court of Appeals has explained that “the display requirement has been construed broadly to cover a wide range of actions which might reasonably create the impression in the mind of the victim that the robber is armed with a firearm” (People v Lopez, 73 NY2d 214, 220-221 [1989]). There must be a showing that the defendant “consciously displayed something that could reasonably be perceived as a firearm…and that the victim actually perceived the display” (id. at 220). Thus, the firearm apparently being displayed may be “held inside a coat or otherwise obscured,” and “even a hand consciously concealed in clothing may suffice” (id. [emphasis added]).

Following Lopez, this Court has recognized that to establish the display element it is sufficient that the victim hears the defendant say that he or she has a gun, and sees some gesture by the defendant indicating that the gun of which he spoke is at hand, albeit secreted or obscured; those actions by the defendant have been characterized as “manifesting” the firearm’s presence. For instance, in People v Clarke (265 AD2d 170 [1999], lv denied 94 NY2d 821 [1999]), as defendant’s companion snatched a necklace from the victim, he yelled to the defendant, “get the gun,” and the victim saw the defendant reach into his waistband in response. By this combination of words and actions the defendant was found to have “manifested” that he had an gun in his waistband. In People v Avilla (234 AD2d 45 [1996]), the defendant told the victim, “I have a gun and I’m gonna blast you,” then reached into his jacket pocket and rummaged around. In neither case did the victim actually see the weapon displayed, or even see its outline or a bulge; rather, the presence of the weapon was “manifested” by the defendant’s physical gestures.

The showing here that defendant’s hand was obscured behind the counter display, so that the complainant could not see whether defendant was simulating a firearm or was simply placing his left hand at his waist or on the shoulder bag hanging down his left side, does not preclude a finding that defendant manifested the presence of a gun. When a person places his hand inside his coat, an observer cannot tell if the person is placing his hand on some other innocuous item or on a gun; the critical point is whether the words spoken and the actions taken “reasonably create[] the impression in the mind of the victim that the robber is armed with a firearm” (Lopez, 73 NY2d at 220-221). Defendant’s hiding his hand from view behind the counter display is no different from sliding it into the inside of a jacket; it is the implication that the hand is reaching for the already mentioned gun, not the sight of the weapon itself, or the hand, that matters. Nor is the motion of the hand critical; it may be the motion or it may be the placement of the hand that gives the victim the impression that the robber has a firearm. Notably, this Court has affirmed a conviction for robbery in the first degree under Penal Law 160.15(4) where there was even less evidence than in this case that the defendant consciously created an impression of what could reasonably be‚Äîand was‚Äîperceived as a firearm (see People v McDaniel, 54 AD3d 577 [2008], affd 13 NY3d 751 [2009]). There, the “display” of a weapon was established only by the testimony that the defendant held one hand at the complainant’s neck and the other “‘under the arm,’ apparently near his waist”; there was not even an indication that the defendant explicitly stated that he had a gun (54 AD3d at 578 [Catterson, J., dissenting]).

Here, the jury necessarily found that the manner in which defendant positioned himself was calculated to make it appear that his left hand was reaching toward a concealed gun, and that this positioning served to indicate to his victim that the gun he had referred to in his verbal threat was within reach of his hidden left hand. This finding was sufficiently supported by the testimony. Nor was the verdict against the weight of the evidence.

The above excerpt (a worthy cut and paste) clearly sets forth that “displays what appears to be” need not be an object protruding from your jacket or a fake pistol. The law is much more liberal when interpreting the statute and its requirements.

For further information on violent crimes, including Robbery and its various degrees in New York, please follow the respective links. Additional information regarding New York criminal law and statutes is located on the New York Criminal Lawyer Blog (NewYorkCriminalLawyerBlog.Com).

Crotty Saland PC, a New York criminal defense firm founded by two former Manhattan prosecutors, represents the accused in violent crimes and allegations throughout the New York City area.

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