New York Robbery Attorney
In casual conversation, many people use the word “robbery” very broadly, to include a number of theft-related crimes, including Burglary. In fact, Robbery is very specifically defined as forcibly stealing property from another person with the use or threat of physical force, which is defined in Penal Law Section 160.00.
Robbery differs from Larceny in that Larceny does not involve the use of force. However, Larceny may turn into Robbery if the person committing the crime uses or threatens the use of force. For example, a person in the process of picking another’s pocket is committing Larceny and not Robbery. However, if the intended victim notices and the pickpocket pins him or her against the wall in order to retrieve the wallet by force, the Larceny has become a Robbery.
While the definition of Robbery is simple and straightforward, not all robberies involve exactly the same elements or carry the same penalties.
Robbery in the Third Degree
The lowest-level Robbery charge is Robbery in the Third Degree, Penal Law Section 160.05, which is a class D felony. A first-time offender convicted of a class D felony may be sentenced to 3 to7 years in prison. In most cases, however, the judge has many sentencing options, including:
- 1 year in jail;
- A split sentence of 6 months in jail, and
- 3 to 5 years of probation, or
- A 3-year conditional discharge;
- 3 to 5 years of probation;
- Conditional release; or
- Unconditional release
The penalty imposed is likely to be more severe when the crime was sexually motivated, and will usually include a period of post-release supervision.
Robbery in the Second Degree
Robbery in the Second Degree, Penal Law Section 160.10, will be charged when, in addition to the property having been taken by force or threat of force:
- The defendant is aided by another person, who is present during commission of the crime;
- During the crime or immediate flight, the defendant displays a firearm (or anything that appears to be a firearm);
- During the crime or immediate flight, the defendant physically injures another person who is not a participant in the crime; or
- The property stolen is a motor vehicle (carjacking)
While most of these provisions are clear, “appears to be a firearm” bears further explanation. Of course, display of an actual firearm—whether loaded or unloaded—will trigger a charge of Robbery in the Second Degree. But, no actual firearm is required. In fact, the appearance of a firearm may be created by something as simple as pointing a finger under a shirt or jacket to create the impression that one possesses a weapon.
Likewise, “physical injury” is broadly construed. Technically defined as “impairment of physical condition or substantial pain,” an injury as minor as a cut or bruise can be deemed physical injury for purposes of this statute.
Sentencing for Robbery in the Second Degree
Robbery in the Second Degree is a class C felony and a violent felony offense carrying a mandatory prison sentence of at least 3.5 years. The maximum sentence is 15 years in prison, unless the crime was related to Domestic Violence. Robbery in the Second Degree in a Domestic Violence case may result in an indeterminate prison sentence.
In addition to the prison sentence, a 2.5 to 5 year period of post-release supervision is required. If the crime was sexually motivated, the post-release supervision period may be longer.
Robbery in the First Degree
Robbery in the First Degree, Penal Law Section 160.15, will be charged when, in addition taking property by force or threat of force, the defendant during the crime or immediate flight:
- Is armed with a deadly weapon;
- Displays what appears to be a firearm that is loaded with ammunition and operable;
- Causes a serious physical injury to a non-participant in the crime; or
- Uses or threatens the immediate use of a dangerous instrument
“Deadly weapon” encompasses a wide range of weapons, including many knives, blackjacks, and metal or plastic knuckles.
Note that the “displaying a firearm” provision differs from Robbery in the Second Degree in that the weapon must be loaded and operable. A person charged with Robbery in the First Degree under this provision may assert as an affirmative defense that the weapon was either not operable or not loaded.
Although the burden is on the defendant to prove an affirmative defense, the standard is less stringent than that required for a conviction: the defense attorney need only establish that the weapon was inoperable or unloaded by a preponderance of the evidence. A defendant who prevails in establishing that a firearm was unloaded or inoperable may still be convicted of Robbery in the Second or Third Degree.
“Serious physical injury” is more severe than the “physical injury” required for Robbery in the Second Degree, and is defined as:
- Protracted disfigurement;
- Protracted impairment of health;
- Protracted impairment of the function of a bodily organ; or
- Substantial risk of death
Finally, anything that is capable of causing serious physically injury or death may be considered a dangerous instrument. Thus, this includes not only weapons, but items such as a tire jack or a brick. And, the item need not actually be used: a person is guilty of Robbery in the First Degree if, in the commission of a Robbery, he or she merely threatens to use such an instrument.
Sentencing for Robbery in the First Degree
Robbery in the First Degree is a class B felony and a violent felony offense, carrying a mandatory minimum prison sentence of 5 year and maximum of 25 years. If the crime is related to Domestic Violence, the prison sentence may be indeterminate. In addition, the sentence requires a 2.5 to 5 year period of post-supervision release, which may be extended if the crime was sexually motivated.