"Attorneys and law professors said the decision will alter how both criminal defenders and prosecutors handle theft cases, will result in more first-degree robbery charges being handed down, and shifts to the defense the burden of proving whether the object displayed in a robbery is a deadly or dangerous instrument, distorting the Legislature's intent when writing robbery law. The impact could be particularly severe for indigent clients now burdened with the need for expert assistance to fight the case against them."
"Obviously, after this decision, prosecutors are going to be able to charge first-degree robbery under Subsection 4 whenever a defendant displays what appears to be a firearm, said Heather Cucolo, a criminal law professor at New York Law School who was not involved in the case. That is going to be the preferred charge in gun display robberies, particularly where weapon capability is uncertain. It's not going to matter if it's a BB gun or a toy gun, or a toothbrush, she said."
The Court of Appeals ruled 4-3 that displaying a BB gun while stealing can lead to a first-degree robbery conviction under New York law. The ruling treats objects that appear to be firearms as sufficient to elevate robbery to the state's most severe robbery statute. The decision shifts to defendants the burden of proving that the displayed object was not a deadly or dangerous instrument, altering the role of the affirmative-defense framework. Prosecutors are likely to prefer first-degree Subsection 4 charges in apparent-gun robberies, increasing first-degree prosecutions and imposing expert needs on indigent defendants.
Read at www.amny.com
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