Opinion
December 7, 1961
Appeal from the Erie County Court.
Present — Williams, P.J., Bastow, Goldman, Halpern and Henry, JJ.
Judgment of conviction unanimously reversed on the law and facts and a new trial granted. Memorandum: In October, 1959, an indictment was returned against defendant charging him with the crime of robbery, first degree, in that he, being armed with a dangerous weapon, robbed an employee of a supermarket. Following trial he was found guilty, as charged, and sentenced as a second offender. Some 18 months after the trial it was discovered by the People that the weapon used in the robbery was "inoperable". This fact is now conceded in the brief of the prosecution. Thus, the crime of robbery, first degree, has not been established as there is a complete failure of proof that defendant was armed with a dangerous weapon. (Cf. 1 Wharton's, Criminal Law Procedure, p. 721.) The only proof is that the gun was pointed at the person robbed. There was no evidence and no claim is made by the People that the gun was used as a club, or that the defendant threatened so to use it, upon which a finding might have been made that the weapon was a dangerous one. Moreover, there is no claim that subdivisions 2, 3 or 4 of section 2124 of the Penal Law are here applicable. Therefore, the judgment must be reversed and a new trial granted.