The Defendant has made a motion pursuant to Criminal Procedure Law Section 210.30 to Inspect the Grand Jury Minutes in support of this Indictment upon the grounds of alleged insufficiency.

Upon a Motion to Inspect the Grand Jury Minutes and Motion to Dismiss the Indictment, the Court must examine these minutes in order to determine whether there was competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof (see, People v. Warner-Lambert Co, 51 NY2d 295, 298; People v. Forde, 153 AD2d 466). In context of the Grand Jury Proceedings, legally sufficient means prima facie evidence, not proof beyond a reasonable doubt (see, People v. Mayo, 36 NY2d 1002; People v. Brewster, 100 AD2d 134, 139-141, aff'd 63 NY2d 419; People v. McCarter, 63 NY2d 419; People v. Puma, 97 AD2d 740).

In evaluating the sufficiency of the evidence considered by the Grand Jury as presented by the People, the Court is required to determine whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant a conviction by a Petit Jury (see, People v. Jennings, 69 NY2d 103, 114; People v. Galatro, 84 NY2d 160; People v. Swamp, 84 NY2d 725; People v. Nunex-Mezon, 168 AD2d 991 (4th Department 1990). The motion should be granted upon a clear showing of insufficiency with the burden of proof resting on the defendant (see, People v. Howell, 3 NY2d 672, 675).

Measured by the foregoing propositions, the Court finds that the evidence before the Grand Jury relative to the single count of the Indictment is legally insufficient within the [*2]mandates of Criminal Procedure Law Section 190.65(1).

The defendant is charged in the indictment with having committed a single count of Robbery in the Third Degree in violation of Penal Law 160.05, in that it is alleged:

"Walter Brown, on or about the 9th day of April, 2010, at the City of Syracuse, in this County, forcibly stole approximately One-Hundred and Forty Dollars (140.00) in United States currency and bait money from Nellisha Gregory, an employee of Bank of America."

Under our Penal Law, Robbery in the Third Degree is defined as follows:

"A person is guilty of Robbery in the Third Degree when he forcibly steals property."

Our Penal Law 160.00 further generally defines Robbery as follows:

"Robbery is forcible stealing. A person forcibly steals property and commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of:

1. Preventing or overcoming resistance to the taking of property or to the retention thereof immediately after the taking; or

2. Compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny."

In order to establish a Robbery in the Third Degree under this theory, the People must establish in this presentment that in the course of committing a larceny the defendant used, or threatened to use the immediate use of, physical force upon another person for the purpose of preventing or overcoming resistance to the taking or compelling another person to deliver up the property.

The Court of Appeals in People v. Woods, 41 NY2d, 279 stated at page 281:

"The People must show not only the taking of the property, but that the taking was accomplished by means of the use or threatened immediate use of physical force."

While the Court in Woods found that there was ample evidence that the defendant had resorted to the use of threats of the immediate use of physical force from the nature of the statements made to the victim during the course of the transaction, the Court went on to comment generally on the nature and quality of statements and the conduct of a defendant that may constitute the threatened immediate use of physical force.

The Court in Woods stated at page 283:

"To suggest that the threatening words, if any there be, must in and of themselves express the immediacy of the physical force is to craft an added and unjustified requirement onto the statute ... The statute does not require the use of any words whatsoever, but merely that there must be a threat, whatever its nature, of the immediate use of physical force." [*3]

The Court in People v. Mosley, 59 AD3d, 961, consistent with the holding in Woods regarding the nature of the defendant's statements and/or conduct that constitutes a threat of the immediate use of physical force, stated at page 961:

"All that is necessary is that there be a threatened use of force ... which may be implicit from the defendant's conduct or gleaned from a view of the totality of the circumstances (People v. Rychel, 284 AD2D 662, 663 (2001; see Penal Law 160.00; People v. Woods, 41 NY2d 279, 282 - 289 (1977)."

The Court in Mosely then states at page 962:

"The People presented evidence from which defendant's threatened use of force could be implied, i.e., the testimony of the bank employees to whom defendant handed a note upon arriving at the respective banks."

Similarly, the case of People v. Zagorski, 135 AD2d, 594 involved a bank robbery case wherein the defendant, upon entering the bank wearing a ski mask, announced, "this is a holdup - everybody stay calm, nobody will be hurt", while taking the money from the tellers stated, "do as I say and nothing will happen". The Court in Zagorski, under the facts and circumstances of that case, held that a person is guilty of Robbery in the Third Degree only if the crime involved a threat of the immediate use of physical force" (citing Penal Law 160.00; 160.05).

The Court in Zagorski found that the obvious implications of a remark such as "do as I say and nothing will happen" is that, should the speaker not be obeyed, something untoward would in fact happen and that in light of these remarks and the circumstances of the case it was not unreasonable to find that the defendant was fully prepared to use violence in the event his demands were not immediately complied with.

Therefore, the essence of the crime of Robbery is the forcible stealing of property. Under Penal Law 160.00 a Robbery occurs when a person forcibly steals property by the use of, or threatened use of, immediate physical force upon another person for the purpose of compelling that person to deliver up property or to prevent or overcome resistance to the taking (i.e., Robbery in the Third Degree, Penal Law 160.05).

While the statute does not require the use or display of any weapon, or that the victim be physically injured or touched, or require the use of any words whatsoever, there must be at least a threat of the immediate use of physical force upon another person, whatever its nature. While this threatened use of immediate physical force may be implicit in the defendant's conduct, and need not be verbally expressed, there must be more than the mere wrongful taking of property from another person. Clearly the facts and circumstances of a given case must provide a basis upon which to reasonably infer that such statements or conduct constitute implicit or otherwise the forcible stealing of property by the use of a threat of the immediate use of physical force upon another person.

The Grand Jury Minutes reflect in part that when the bank teller looked up from her work she observed a slender, caramel-colored man in front of her, wearing a bright nylon-like traction jacket, and that he was wearing a hood with a medical-type mask or thing on his face. To paraphrase the teller's testimony, she though he was just another similar type of person that she [*4]has seen in the bank before, and did not think anything of it, until he put a plastic bag and a crumpled-up note on the counter-top. The teller testified that she looked at his eyes and she thought he looked kind of nervous, "so it seemed I was getting robbed". The teller testified she opened the note and it said, "give me your money", following which she asked him for a debit card, just to make sure "I" was getting robbed. The person responded "No" to the inquiry regarding the debit card and stated, "Give me your money". The teller complied by opening her drawer and putting the bait money in the plastic bag and putting it on the counter. The defendant then grabbed the note and the bag and left the bank.

To repeat, in the present case the Court is of the opinion that the minutes are legally insufficient to support the charge of Robbery in the Third Degree as defined by our Penal Law. The handing of the note to the teller that requested her to "give me your money" followed by a verbal statement to that effect without more, unaccompanied by other statements or conduct, did not constitute a threat of the immediate use of physical force and therefore did not establish prima facie evidence of a "forcible stealing" of property, as defined by Penal Law 160.05 and 160.00. Our Penal Law 160.00 defines Robbery as the forcible stealing of property which specifically requires that, in the course of committing a larceny, the defendant uses or threatens the immediate use of physical force upon another person for the purpose of compelling that person to deliver up the property, or to retain the property after the wrongful taking. Absent the use of force or the threatened immediate use of physical force, a wrongful taking is a larceny, and not a Robbery in any degree. A person is guilty of Robbery in the Third Degree as charged in this indictment when he "forcibly steals property".

The Court therefore finds that the minutes are legally insufficient to support the Robbery in the Third Degree (Penal Law 160.05) count, but are legally sufficient to support the lesser-included charge of Petit Larceny in accordance with Penal Law 155.25.

Therefore, the Court hereby orders that the Robbery in the Third Degree count in violation of Penal Law 160.05 be reduced to allege the crime of Petit Larceny in violation of Penal Law 155.25.

Based upon the foregoing Decision the People may proceed in accordance with the options provided in Criminal Procedure Law 210.20(6)(a)(b)(c).

The Decision herein constitutes the Order of the Court.

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HONORABLE ANTHONY F. ALOI

Judge of County Court

Dated: Syracuse, New York

July 9th, 2010

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