From Casetext: Smarter Legal Research

People v. Ruiz

Appellate Division of the Supreme Court of New York, Second Department
Oct 2, 1995
631 N.Y.S.2d 779 (N.Y. App. Div. 1995)

Opinion

October 2, 1995

Appeal from the Supreme Court, Kings County (Owens, J.).


Ordered that the judgment is affirmed.

There is no merit to the defendant's contention that the trial court erred in refusing his request to charge robbery in the third degree as a lesser-included offense of robbery in the first degree. To establish entitlement to a lesser-included offense charge, the defendant must show (1) that it is impossible to commit the greater offense without concomitantly committing, by the same conduct, the lesser offense (see, CPL 1.20; People v. Glover, 57 N.Y.2d 61, 63), and (2) that a reasonable view of the evidence would support a finding that the defendant committed the lesser offense, but not the greater.

Since the proof of all of the elements of the crime of robbery in the third degree under Penal Law § 160.05 is also required to prove guilt of robbery in the first degree under Penal Law § 160.15 (4), the impossibility test of the first prong was satisfied (see, People v. Green, 56 N.Y.2d 427, 433; People v Addison, 73 A.D.2d 790, 791). However, since the defendant's conduct, as perceived by the complainant, was a display of a gun within the meaning of Penal Law § 160.15 (4), a reasonable view of the evidence would not support the conclusion that the crime occurred without such display. Accordingly, the defendant's request for a charge on the lesser-included offense of robbery in the third degree was properly denied (see, People v Scarborough, 49 N.Y.2d 364, 369-370; People v. Maynard, 211 A.D.2d 505; People v. Mays, 178 A.D.2d 557; People v. Neal, 118 A.D.2d 815, 816). O'Brien, J.P., Copertino, Santucci and Joy, JJ., concur.


Summaries of

People v. Ruiz

Appellate Division of the Supreme Court of New York, Second Department
Oct 2, 1995
631 N.Y.S.2d 779 (N.Y. App. Div. 1995)
Case details for

People v. Ruiz

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOSE RUIZ, Appellant

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Oct 2, 1995

Citations

631 N.Y.S.2d 779 (N.Y. App. Div. 1995)
220 A.D.2d 466

Citing Cases

People v. Deboue

The People consent to forego a new trial to correct this error ( see, CPL 470.15 [a]; People v McCain, 172…

People v. Cooper

Contrary to the defendant's contentions, the trial court correctly denied the defense request that robbery in…