A Queens Gun Criminal Lawyer said that, where an accomplice to a robbery acts solely as the getaway driver and participates in neither the threat of force, its use, nor the taking of property, and is not in the immediate vicinity of the robbery or so positioned as to be capable of rendering immediate assistance to the robber, he is not “another person actually present” within the meaning of the aggravating accomplice factor of robbery, second degree.
A Queens Criminal Lawyer said that, defendant appeals from the affirmance of his conviction, after a jury trial, of robbery, second degree, arising from the holdup of a bank. His chief contention is that the trial court should have granted his dismissal motion, made at the close of the People’s case, upon the ground that there was insufficient proof, as a matter of law, to show that he committed the robbery while “aided by another person actually present”. A divided Appellate Division affirmed, holding, in pertinent part, that a getaway driver “shown to be parked approximately 15 feet from the bank at the time of the robbery” could be considered “actually present” at the robbery, inasmuch as the history of the Penal Law “suggests an elimination” of the distinction between actual and “constructive” presence. For reasons which follow, we agree with the view of the dissenter at the Appellate Division that both the legislative history and the plain meaning of the phrase “actually present” rule out the interpretation that it could include a person who was only constructively present at the crime scene.
The issue in this criminal case is whether aid to a robber by a person who, unseen by and unknown to the victims, is waiting outside in an automobile is a circumstance which the Legislature intended should raise what would otherwise be robbery in the third degree to the crime of aggravated robbery in the second degree.
The answer entails ascertaining what conduct or aggravating circumstances the Legislature envisioned as being within the term “aided by another person actually present”. More precisely, we must determine whether the Legislature intended that the added presence of another person, under the circumstances in this case, constitutes a degree of seriousness commensurate with “causing physical injury” to a nonparticipant “displaying what appears to be a firearm” so as to warrant elevating the crime to a class C felony. From the plain meaning of the statutory language, the relevant legislative history, and, particularly, the term’s underlying purpose and sense as part of the criminal robbery article of the Penal Law, we conclude that the Legislature did not so intend.
The People’s sole witness to defendant’s actions at the robbery was a bank teller. She testified that, on July 3, 1981 at about 1:30 in the afternoon, defendant came to her window at the branch of Manufacturers Hanover Bank at the intersection of Jamaica Avenue and Hollis Court Boulevard in Queens County. He handed her a note which read: “Important. Follow to the letter. Smile as you work. I am a soldier for the People’s Court, Black Liberation Party, trained to die for the cause. Do not panic and no tricks. Your life and others are in jeopardy. I have a bomb and demand the sum of $15,000. No one’s. I will look in bag. No tricks. We know where you live. Move now. Time is very little.” The teller informed defendant that she did not have that amount of money at her station and gave him the $200 in cash from her drawer. With the money in hand, defendant went out the front door facing Jamaica Avenue. There was only one other exit, at the rear of the bank.
To Be Cont,,,,
As defendant left, the teller pressed the silent alarm and went looking for the assistant manager whom she found near the rear of the tellers’ area and informed of the robbery. After the assistant manager read defendant’s note, he and the teller went to the window on the side of the bank facing Hollis Court Boulevard and observed defendant. He was walking along the sidewalk on that side of the bank, around the corner from the front door, towards an automobile parked at curbside by a parking meter. The automobile was 15 feet from the bank window. Sitting in the driver’s seat was a person whose gender, age and race the teller could not determine. When criminal defendant entered the automobile on the passenger side, it drove off.
There was also testimony by the officer who interviewed defendant at the station house upon his arrest several days after the robbery. According to the officer, defendant admitted the robbery, identified his driver, and said that they had discussed the robbery beforehand. No further evidence was presented as to the nature or extent of the driver’s participation. Under these facts, it cannot be said that the driver was sufficiently involved in the robbery or close enough to criminal defendant at the time to have been “actually present”.
The Legislature has instructed us that in interpreting the Penal Law, the provisions must be read “according to the fair import of their terms to promote justice and effect the objects of the law”. As with other statutory provisions, those contained in the Penal Law are generally to be construed so as to give effect to their most natural and obvious meaning. This is particularly important where the definition of a crime is at issue, because courts must be scrupulous in insuring that penal responsibility is not “extended beyond the fair scope of the statutory mandate”. Applying these general rules, we examine the criminal statute in question by analyzing its plain meaning, legislative history, and underlying sense and purpose.
As defined in the Penal Law, a simple taking of property by force, without any aggravating circumstances such as physical injury to a nonparticipant or use of a weapon, constitutes robbery in the third degree, a class D felony. When the commission of the offense includes circumstances which cause, threaten to cause, or increase the risk of physical injury to another, the Legislature has deemed the crime to be more serious and deserving of greater punishment. Thus, when a participant in the robbery is armed with a deadly weapon, uses or threatens the immediate use of a dangerous instrument, displays what appears to be a firearm, or causes serious physical injury to a nonparticipant, the offense is upgraded to robbery in the first degree, a class B felony. Where the robbery is accompanied by less serious circumstances, it is classified as robbery in the second degree–the crime involved here–a class C felony. 2 The Penal Law defines criminal robbery in the second degree as follows:
“A person is guilty of robbery in the second degree when he forcibly steals property and when: “1. He is aided by another person actually present (emphasis added); or “2. In the course of the commission of the crime or of the immediate flight therefrom, he or another participant in the crime: “(a) Causes physical injury to any person who is not a participant in the crime; or “(b) Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm”.
Turning first to the statute’s plain meaning, we conclude that the term “actually present” does not encompass the presence of the getaway driver here. Giving the term its natural and obvious meaning, “actual” refers to that which is “opposed to potential, possible, virtual, theoretical, hypothetical, or nominal in opposition to constructive or speculative in contradistinction to virtual or constructive”. The criminal notion of “actual presence” pertains, therefore, to something other than presence which is merely “theoretical” or “constructive”. To hold that the term “actual presence” means presence in the broader sense so as to include “constructive presence”, as the People urge, would read the word “actual” out of the statute. It would denude the phrase of its plain meaning and, moreover, violate the accepted canon of construction, especially critical when interpreting penal provisions, that words which define or delimit the reach of statutory provisions may not be disregarded as superfluous, but must be given meaning and effect.
The legislative history of the robbery statute confirms our reading of the provision in question. We agree with the dissenting Justice at the Appellate Division that, by the phrase “aided by another person actually present”, the Legislature intended to exclude, as an aggravating factor, aid by a person other than one actually present–i.e., aid by one whose presence is merely constructive.
The seriousness of aid given by “an accomplice actually present” as an aggravating element in the crime of robbery was recognized in 1881 when the Legislature singled-out that criminal circumstance as a factor sufficiently egregious to elevate the crime to robbery in the first degree in the old Penal Code. The evident purpose in specifying that the accomplice be “actually present” was to incorporate, for purposes of the robbery statute, the distinction between actual and “constructive presence”, which was then well established in the common law, and to make clear that a criminal accomplice who was only constructively present would not satisfy the statute. That this was the purpose becomes clear when section 228 of the 1881 Penal Code is read in the light of a decision of our court earlier in the same year and in the light also of section 29, enacted as part of the same 1881 code, pertaining to the definition of principal for purposes of criminal liability.
Concededly, for the purpose of assigning criminal responsibility to an aide or abettor as a principal, the Legislature used the unmodified word “present” in its broad sense in section 29 of the Penal Code of 1881. It is evident, however, that for the totally different purpose of defining a factor of sufficient seriousness to raise the level of ordinary robbery to an aggravated degree, the Legislature intentionally used the modified term “actually present” for a narrower and more restricted meaning.
That the Legislature would not have intended to include a person who was only constructively present is convincingly demonstrated by an analysis of the underlying sense and purpose of the aggravating accomplice factor in its context as part of the robbery sections.
When the three aggravating factors in Penal Law § 160.10 are read together, they reflect a concern for the added element of physical harm, danger, and perceived threat of additional violence to the victims of the robbery. That concern is clearly present in situations involving physical injury or the apparent willingness to use a firearm. Likewise, it is present where the robber is joined by another in his use or threat of force or in his seizing or retaining another’s property. No such concern exists, however, where the robber has but one accomplice,
unknown and unseen to the victim at the time of the robbery, and limited in his participation to waiting for the robber and driving him from the area once the taking has been accomplished.
There is additional evidence in the statute that it was accessorial aid at the crime scene and not elsewhere which the Legislature considered sufficiently serious to be an aggravating factor. Two of the three aggravating factors, causing physical injury and displaying a firearm, operate to raise ordinary robbery to robbery in the second degree not only when the aggravating conduct occurs at the crime scene, but also when it occurs during the “immediate flight therefrom”. By contrast, the aid rendered by an accomplice must, in order to operate as an aggravating factor, be rendered while that accomplice is actually present at the robbery Assistance rendered solely in the course of “flight therefrom” does not raise the offense to second degree robbery.
Accordingly, the court has considered criminal defendant’s other contentions and find them to be without merit. Accordingly, the order of the Appellate Division should be modified, defendant’s conviction reduced to robbery in the third degree, and the case remitted for resentencing.
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