‘Slippery slope’: Brandishing BB gun in robbery can yield first-degree charge, appeals court rules

In a ruling that legal experts say sets a new precedent for how first and second-degree robbery is charged in New York, the Court of Appeals ruled 4-3 that a person who displays a BB gun while stealing can be convicted of first-degree robbery — the state’s most severe robbery statute.

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.

That’s a big change, said Stephanie Stare, the defense attorney on the case.

She argued her client should’ve been charged with second-degree — not first-degree — robbery because he wielded a BB gun — not a real gun — when stealing from a hair salon, something she said had been “almost a foregone conclusion” in the past due to a rule called an affirmative defense, attached to the first-degree statute.

The rule says if the defense can prove the object was not a loaded weapon capable of causing death or other serious physical injury, then a first-degree charge isn’t valid.

According to the law, robberies are charged as second degree when a person displays what appears to be a firearm. The charge is elevated to first degree if a person does one of four things: causes someone serious physical injury, is armed with a deadly weapon, threatens to immediately use a dangerous instrument, or, the matter at hand: displays what appears to be a firearm — identical to the second-degree statute with the addition of the affirmative defense rule.

“This case was a very specific circumstance where we knew that the weapon was a BB gun,” Stare said. “It’s one of those really niche issues, but the majority decision kind of blew it open, and it’s no longer a niche issue. It is a sweeping declaration of what’s required to get the affirmative defense and how robbery can be charged in the first place.”

Stare and Cucolo said the majority’s ruling, written by Judge Shirley Troutman with Judges Jenny Rivera, Michael Garcia and Anthony Cannataro concurring, effectively “dissolved” the difference between first and second-degree robbery statutes. In a dissent, Chief Judge Rowan Wilson held the same view. He said the majority was out of step with legislative intent for multiple reasons, including that, due to the way the affirmative defense is written, it will frequently result in the burden of proving whether a BB gun could cause death or serious injury being placed on the defendant — typically, laws are written so burdens of proof rest with the prosecution.

“The majority’s contrary reading results in an incomprehensible statutory scheme and shifts the [prosecution’s] burden of proof onto the defendant,” writes Wilson, with Judges Madeline Singas and Caitlin Halligan concurring. “Completely contrary to that clear statutory requirement, the majority now allows the [prosecution] to shirk their burden…and secure a first-degree conviction by proving no more than what the legislature denominated as second-degree robbery: use of what appears to be a firearm.”

“Because of the majority’s misconstruction of the robbery statute, the [prosecution] will never have reason to charge under second-degree robbery,” Wilson continued. “The majority’s reading impermissibly…places non-deadly toys, BB guns and toothbrushes on equal footing with firearms, when the existence of second-degree robbery alone reveals the legislature’s intent to treat those items differently.”

Calls to clarify the law

Legal experts called on elected officials to pass legislation to clarify the statute, suggesting that the Legislature enact sentencing reforms to distinguish between real and imitation weapons and to make clear whether it intends for BB guns to be considered firearms or dangerous weapons.

Stare said, at the moment, the statute was too wordy and convoluted, which resulted in her, the prosecutor and judge “splitting hairs” over each word as she argued the case.

“It was almost like being in middle school English where we were all just diagramming sentences and what applies to what,” Stare said. “I think the intent behind the statute is lost in the wording of it.”

“It’s obviously up for interpretation, and it’s been interpreted in a way now that’s making it very clear that it needs to be rewritten,” she said.

Other attorneys, however, like Amy Walendziak of the Monroe County District Attorney’s office, the prosecutor on the case, said they felt this decision provided all the clarity they needed.

“We were very pleased with the outcome,” Walendziak said. “In the state, there was a bit of a department split between how [different regions] handle this issue. I think it’ll be beneficial that there’s clarity on how this issue should be handled going forward.”

For example, Walendziak said, courts upstate had held something similar to the majority in this case in the past: that if the defense couldn’t prove a BB gun wasn’t capable of causing death or serious injury as a matter of fact, a first-degree charge should stick. But courts downstate had held in other cases that, as a matter of law, if a BB gun was used, a second-degree charge should be applied.

“This clarifies exactly what the statute requires in this sort of situation,” she said.

So, unless the Legislature decides to alter its language, attorneys will have to alter their practice to effectively litigate in the aftermath of this decision.

Prosecutors will charge more cases as first-degree robberies, specifically under Subsection 4, the provision that allows the charge if someone displays what appears to be a firearm except when the defense can prove the object used, Cucolo said, because they won’t be saddled with the burden of proof regarding the weapon’s capability. Why charge someone under Subsection 2 or 3, where you’d have to prove the object was deadly or a dangerous instrument to get the conviction, when you could shift the burden to the defense to prove it’s not one and get the conviction as long as they can’t do so?

That means defense attorneys are going to have to do a lot more work to successfully defend any client who allegedly displays a BB gun while committing robbery from a first-degree charge, experts said.

If she were assigned the same case today, Stare said she would prioritize getting possession of the BB gun from the prosecution so she could run tests to determine its capabilities. She’d also fight to make sure the jury received clear, in-depth instructions on the affirmative defense.

Cucolo said defense attorneys could also look to relying on bringing in expert testimony to speak to a particular BB gun’s capabilities, as there’s a higher requirement for defendants to present concrete evidence.

“What was clear in the majority’s decision was the necessity for defense counsel to present evidence,” Cucolo said. “The problem was not that BB guns are inherently deadly or inherently harmless, but an evidentiary issue, and the only argument that was offered was that conclusory claim that a BB gun is not a weapon that can actually shoot you dead, but that’s merely an argument. That’s not evidence.”

The change makes help from experts necessary, she said.

“You could ask an expert, ‘What was the muzzle velocity? What’s the mass and shape of the projectile? How far were they from the victim, the target area? Was that gun actually loaded? Was it operable?’” Cucolo said.

Beyond testing the weapon and bringing in experts, the only other thing defense attorneys could do during a trial would be to have their client testify, something Stare said was not ideal.

“You could put your client on the stand and have him waive his right to remain silent by speaking about the operability or lack thereof of the gun, because a lot of times there aren’t any other witnesses [favorable to the defense],” Stare said. “Then, you’re forced to concede that you have knowledge of this instrument, which takes away the ability to claim, ‘It wasn’t me at all.’”

All of this will change plea negotiations, Cucolo said, providing prosecutors with more leverage at the bargaining table because they’ll be able to charge first-degree robbery simply by showing the defendant displayed what appeared to be a firearm.

“The higher sentencing guidelines are going to create significant pressure to accept a plea,” she said, “because the threat of a harsher sentence is a confirmed reality. It potentially weakens the defendants’ bargaining position, and certainly brings in a level of uncertainty that would make defendants more likely to accept plea deals, even if that weapon was harmless.”

Being aware of the changed precedent and how to construct cases under it is important, Stare said, because the difference between being convicted on a first versus a second-degree charge could be 10 more years in prison.

That’s something Cucolo questions whether the majority took into consideration when writing their decision.

“I really think there’s a concern of overcharging here,” Cucolo said. “There’s a real significant problem, because when we look at these types of cases, we’re looking primarily at indigent defendants, and the requirement now — the bearing of the expert costs, the requirement of what might need to be put in place in order to effectively fight a first-degree charge — is high. It is a grave burden.”