Opinion
March 9, 1989
Appeal from the Supreme Court, New York County (Thomas Galligan, J.).
The convictions here result from a series of bank robberies. The counts charging robbery in the first degree alleged a violation of Penal Law § 160.15 (4), forcible stealing while displaying "what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm". It is an affirmative defense to robbery, first degree, under Penal Law § 160.15 (4) that such firearm was not loaded and not readily capable of being fired in order to produce death or other serious physical injury. In these cases the defendant never displayed a weapon although his actions simulated that he possessed one. No witness ever saw a weapon and the defendant denied that he had one. Defendant was followed and apprehended immediately after one of the robberies and no gun was found when he was searched. Given this evidence, the defendant was entitled to a charge to the jury on the affirmative defense contained in Penal Law § 160.15 (4), an affirmative defense which would reduce robbery in the first degree to robbery in the second degree. (People v. Gilliard, 72 N.Y.2d 877.) In refusing to give the charge, the trial court erred. While the refusal to so charge may result in a reversal and a remand for a new trial (see, People v. Rosario, 132 A.D.2d 505 [1st Dept 1987]; People v. Gayle, 131 A.D.2d 365 [1st Dept 1987]), it is sufficient in some cases to reduce the conviction of robbery in the first degree to robbery in the second degree. (People v. Gilliard, 72 N.Y.2d, supra, at 878.)
In view of this disposition and the fact that 27 counts are involved, we deem it appropriate that the defendant be resentenced on all of the counts. We have examined the other contentions and find them to be without merit.
Concur — Sullivan, J.P., Asch, Milonas, Rosenberger and Smith, JJ.