NY Penal Law 160.05: Robbery In The Third Degree

by ECL Writer
Robbery In The Third Degree

Robbery is stealing. It is one of several theft crimes defined in the New York Penal Law. The primary element that distinguishes robbery from grand larceny, petit larceny, embezzlement, and burglary is that robbery involves the use of force or the threat of violence. There are three different robbery offenses: robbery in the third degree, second degree, and first degree. Robbery in the third degree is the least serious charge. This is the charge that you will face if you committed a robbery, but you did not use a deadly weapon, you did not use a dangerous instrument, you did not steal a vehicle, you did not have an accomplice, and the victim did not suffer a physical injury. Even though robbery in the third degree is the least serious robbery charge, it is still a felony. If you are convicted the judge could sentence you to prison. In addition, you may be ordered to pay a fine as well as restitution. If you have been charged with robbery in the third degree, it is important to immediately contact an experienced New York Robbery in the Third Degree Lawyer who understands New York criminal law and who will understand the best course of action to aggressively defend you against the charges.

Robbery In The Third Degree

You will face this offense if while committing larceny you use or threaten to use physical force in order to prevent the victim from resisting or overcoming resistance from the victim. Or you use physical force or the threat of physical force in order to compel the victim to turn over the property. N.Y. Pen. Law § 160.05. Larceny is defined the wrongful taking, obtaining, or withholding of property with the intent of depriving another person of that property. N.Y. Pen. Law § 155.05. To face a robbery in the third degree charge it is not required that you cause the victim physical injury. It is just required that you use the threat of physical force to accomplish the robbery.

In order to be charged with third degree robbery you must somehow use force and threaten to use force. New York courts have found that if you place your hand in your pocket in order to make the victim believe that you have a gun is enough to sustain a charge of robbery in the third degree. However, simply having your hand in your pocket is not enough. For example, in People v. Johnson, 972 N.Y.S.2d 699 (2013), the defendant’s conviction of robbery in the third degree was overturned on appeal. While the victim did indeed take property from the victim’s warehouse, the defendant did not have any weapons or do anything else to try to steal from the victim by using force. According to the defendant’s testimony, he placed his hand in his pocket in order to find his keys so that he could flee the scene and quickly drive away. There was no evidence that the defendant had his hand in his pocket to make the victim believe that there was a gun in the defendant’s pocket.

A theft that would otherwise amount to larceny can turn into robbery if you use force or the threat of force to retain the stolen property. This is exactly what happened in the case of People v. Sullivan, 070314 NYAPP4, 2014-05062 (July 3, 2014). Defendant Darren Sullivan was confronted by store security as they suspected that Sullivan had placed unpaid for merchandise in a bag. When store security attempted to prevent Sullivan from leaving with the merchandise, Sullivan threatened to use force and was able to escape with the merchandise. If Sullivan had not used threats in order to retain the stolen merchandise and leave the store, the case would have been a larceny case. However, the court concluded that because Sullivan used threats, the charge Sullivan faced was properly robbery in the third degree.

If you use physical force during a robbery, but the victim does not sustain a physical injury as defined by the statute, then the charge would be robbery in the third degree and not robbery in the second degree. For example, in People v. Young, 100312 NYAPP2, 2012-06629 (October 3, 2009) defendant Damian Young was convicted of robbery in the second degree. During the course of robbing the victim, Young punched her causing her to fall. The victim went to the hospital but only received Tylenol to relieve generalized pain and soreness. The court concluded that the victim’s injuries were too minor to be considered physical injuries as required for a charge of robbery in the second degree. Thus, the defendant’s conviction was reduced to robbery in the third degree.

Arrest And Arraignment

If you are arrested for robbery in the third degree the arresting officer will take you to the local police precinct where you will be fingerprinted and photographed. Within 24 hours of your arrest, you will be arraigned. At your arraignment hearing you will learn the exact charges against you. In some cases, the charges will be different from what you expected. Based on a review of the evidence, the prosecutor may decide to raise or lower the charges, or to add additional charges. Charges that often accompany robbery in the third degree charges include criminal possession of the stolen property and menacing. At your arraignment, you will also learn whether or not bail will be required.

If you are charged with a felony, then New York law requires that the prosecutor present your case to the Grand Jury. The Grand Jury will decide whether you should be indicted, meaning charged with a crime or released. If you are indicted, you may be able to negotiate a plea bargain with the prosecutor. If you are not able to reach a plea agreement with the prosecutor, then your case will go to trial.

Consequences Of A Robbery In The Third Degree Conviction

If you are convicted of a robbery in the third degree your sentence could include incarceration, a fine, restitution, probation or a combination of all these types of punishments


Because robbery in the third degree is a class D felony the maximum sentence is 7 years in prison. Whether or not you are sent to prison and the length of time you must spend in prison depends largely on your prior criminal record. If you have no prior felony convictions within the previous 10 years it is possible for the judge not to sentence you to any prison time at all. Your sentence may include just probation. If you do have at least one prior felony conviction within the last 10 years the judge will sentence you to at least 2-4 years in prison. If you are classified as a persistent felony offender, meaning that you have been convicted of at least 2 prior felonies, the judge is not required to adhere to the maximum sentence of 7 years in prison. The so-called “3 strikes” rule kicks in and the judge could sentence you to between 15 years and life in prison.

Fines, fees, and restitution

In addition to sentencing you to prison as a part of your sentence, the judge may also order you to pay a fine and restitution. The fine would be up to $5,000. Restitution is paid to the victim to cover out-of-pocket expenses that result from the robbery. For example, you may be ordered to pay for the property you damaged or stole. Generally, the maximum amount of restitution is $15,000. You will also have to pay a fee to the company charged with collecting the restitution from you.

Furthermore, you will be required to pay certain fees including a fee that is called a “mandatory surcharge” of $300 as well as a victim assistance fee of $25. N.Y. Pen. Law § 60.35. You may also be required to pay probation or parole supervision fees of $30 per month.

If you do not pay a fine, fee, or restitution, you may be charged with a misdemeanor and sent to prison for up to a year, your wages may be garnished or the state of New York may obtain a judgment against you. However, if you cannot pay the judge may adjust the payment terms, lower the amount you must pay, or revoke the part of the sentencing requiring you to pay.


If you are convicted of robbery in the second degree your sentence may include probation. The term of probation would be 5 years. While serving your probation sentence you will be subject to many rules. If you break any of the rules a judge could revoke your probation and resentence you to prison.

You must not commit a crime. Even a minor infraction could result in a probation violation.
You must not associate with other people who you know have criminal records
You must not patronize unlawful or disreputable places
You must not possess controlled substances or drug paraphernalia
You must consent to warrantless searches without probable cause
You must submit to home visits by your Probation Officer
You must regularly report to your Probation Officer
You cannot leave the State of New York without permission
You must not own, possess or purchase a gun
You must refrain from the excessive use of alcohol
You must complete any ordered substance abuse treatment or medical treatment
You must stick to a curfew
You must have job

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