NY Penal Law 160.10: Robbery In The Second Degree

by ECL Writer
Robbery In The Third Degree

Like larceny and burglary, robbery is a type of theft. It is different from other theft crimes in that robbery is stealing by using force or the threat of force. There are 3 degrees of robbery: robbery in the first degree second degree and third degree. Robbery in the second degree is distinguishable from first or third degrees robbery in that robbery in the second degree requires the use of a gun, that you cause the victim to suffer a physical injury or that you commit the robbery with the help of another person. Robbery in the second degree is a type of theft that is commonly referred to as a “hold up.” In order words, if you use a gun to steal from a business then that theft would be a robbery. Because of the violent nature of robbery in the second degree, if you are convicted the judge could sentence you to up to 15 years in prison. You could also be ordered to pay thousands of dollars in fines and restitution. Because of what is at stake if you have been charged with robbery in the second degree it is important to immediately contact an experienced New York Robbery in the Second Lawyer who will understand the best course of action to aggressively defend you.

Robbery In The Second Degree

Like all robbery crimes robbery in the second degree involves stealing property from another person using force or the threat of force. While it is not the most serious robbery charge if you are convicted you could end up in prison for several years.

Help from another person

You will face this charge if while committing robbery in the first degree you are also aided by another person who is present during the robbery. This is referred to as accomplice liability. For example, in People v. Vicioso , 983 N.Y.S.2d 691 (2014), the defendant was charged with robbery in the second degree. Vicioso and Barnes approached a cab. While Vicioso opened the passenger door, Barnes pointed a gun at the victim and demanded money. Vicioso was charged as an accomplice because he aided Barnes in the commission of the robbery. Similarly, in People v. Hamilton, 980 N.Y.S.2d 463 (2014)defendant Kevin Hamilton robbed someone while being aided by another person who served as the lookout, while in People v. Smith, 982 N.Y.S.2d 437 (2014) the defendant along with his brother impersonated police officers in order to rob the victim.

Displaying A Gun

You will also face this charge if you display a gun or firearm. A gun or firearm includes a pistol, revolver, rifle, shotgun, or machine gun. N.Y. Pen. Law § 160.10. The statute does not require that you display the gun during the robbery. It is sufficient that you displayed the gun during the flight after the robbery. For example, in the case of People v. Colon, 984 N.Y.S.2d 438 (2014), defendant Nelson Colon was convicted of robbery in the second degree based on witness testimony that Colon displayed what appeared to be a gun as he fled the scene. The law does not require that the gun that is displayed be a real gun. The statute only requires that you display something that appears to be a gun. For example, in People v. Brown, 073014 NYAPP2, 2014-05553, (July 30, 2014), the jury convicted the defendant of robbery in the second degree. The victim testified that she was 80% certain that the gun that the defendant displayed was fake. Nevertheless, she complied with the defendant’s demand that she give him money. The gun was not real. However, because the statute only requires that the perpetrator display what “appears” to be a gun in order to force the victim to turn over property, the jury convicted the defendant.

Injury To The victim

If you cause physical injury to the victim or a third party who is not a participant in the robbery, you will be charged with robbery in the second degree. Under New York law the term “physical injury” means an injury that causes the impairment of a physical condition or substantial pain. N.Y. Pen. Law § 10.00(9). For example, in the case of People v. Martinez, 983 N.Y.S.2d 839 (2014), defendant Christian Martinez was convicted of robbery in the second degree. Martinez followed the victim and demanded property. In addition, Martinez punched and kicked the victim several times. The victim experienced substantial pain as well as bleeding from his face, nose, and mouth. Similarly, in People v. Francois, 933 N.Y.S.2d 254 (2011), although there was conflicting evidence about the extent of the victim’s injury, it was clear that the victim did indeed suffer substantial pain. Based on the victim’s substantial pain, the defendant’s conviction of robbery in the second degree was upheld on appeal.

Use Of threat

Another factor that would cause a robbery to become robbery in the second degree is if you use a threat of violence as part of the robbery. The threat can be used in order to force the victim to turn the property over to you, or it could be used in order to retain the property. For example, in People v. Lewis, 82 N.Y.S.2d 920 (2014), while the jury did not find that the defendant used threats in order to steal the property, the jury concluded that the defendant threatened the victim in order to prevent or overcome resistance to the taking or retention of the property.

Carjacking

Regardless of any other factor, if you steal a motor vehicle, you will be charged with at least robbery in the second degree. “Motor vehicle” is defined as any vehicle operated or driven upon a public highway that is propelled by any power other than muscular power. This type of robbery is commonly referred to as carjacking. In order to steal a car, it is not necessary that you drive it. It is only necessary that you exert control over the vehicle. For example, in People v. Zombo, 813 N.Y.S.2d 624 (2006), defendant Pius Zombo came upon the victim while she was pumping gas into her car. Zombo stuck something in her back and demanded her keys. She gave him the keys. However, the victim’s car had an anti-theft device that prevented Zombo from driving the car. Nonetheless, the court upheld Zombo’s conviction of robbery in the second degree as by taking the keys from the victim Zombo exercised control over the car.

Consequences Of A Robbery In The Second-Degree Conviction

If you are convicted of robbery in the second degree you will go to prison for at least 3.5 years. In addition, your sentence may include a fine, restitution, and post-release supervision.

Prison

Because robbery in the second degree is a Class C felony, the maximum prison sentence is generally 15 years. However, the actual length of your prison sentence will largely depend on your prior criminal record. Based on your criminal record, you will be labeled as someone who has no prior convictions, someone who is a non-violent predicate offender, someone who is a violent predicate offender, or someone who is a persistent felony offender.

  • Prior convictions: Prior convictions include felony convictions within the last 10 years.
  • Non-violent predicate: A non-violent felony conviction within the last 10 years.
  • Violent predicate: A violent felony conviction within the last 10 years.
  • Persistent felony offender: At least 2 prior felony convictions.

If you have no prior convictions the judge will still be required to sentence you to at least 3.5 years in prison because assault in the second degree is also classified as a violent felony. If you are classified as a non-violent predicate offender the court will be required to sentence you to at least 5 years in prison, while if you are classified as a violent predicate offender, you will be sentenced to at least 7 years in prison. If you are a persistent felony offender the sentence will be extremely harsh as the general rule of a maximum of 15 years in prison is disregarded The minimum sentence you will receive is 12-25 years in prison, while the maximum sentence is life in prison. N.Y. Pen. Law § 70.08.

Post-Release Supervision

Because robbery in the second degree is classified as a violent felony in addition to being sentenced to prison your sentence will likely also include a term of post-release supervision of 2.5 to 5 years. N.Y. Pen. Law § 70.45(2)(e). While serving your term of post-release supervision, you will be supervised by the Division of Parole. You will be subject to several rules.

  • You must not commit a crime.
  • 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 Parole Officer
  • You must regularly report to your Parole 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 stick to a curfew
  • You must have a job or go to school

Failure to follow any of the post-release supervision rules could result in a violation which may trigger post-release supervision revocation proceedings. If the court finds that you did indeed violate the conditions of your post-release supervision then you may be sent back to prison.

Fines, Fees, And Restitution

As part of your sentence, the judge may order you to pay a fine and restitution to the victim of your crime. 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 stole or damaged during the robbery. If you injured the victim, you may be ordered to pay his or her medical expenses. Generally, the maximum amount of restitution is $15,000. However, the court may increase the amount to more than $15,000 to cover the amount of the victim’s medical expenses. You will also have to pay a fee to the company responsible for 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.

Failure to pay a fine, restitution, or fee may result in additional criminal charges as well as incarceration.

Comparison Of Robbery In The Second Degree With Other Types Of Robbery Offenses In New York

In New York, robbery is defined as forcibly stealing property from another person. There are different degrees of robbery based on the severity of the offense.

Robbery in the second degree is considered a Class C felony and is defined as when a person forcibly steals property and:

  1. Causes physical injury to any person who is not a participant in the crime, or
  2. Uses or threatens the immediate use of a dangerous instrument, or
  3. Displays what appears to be a firearm.

Other types of robbery offenses in New York include:

  1. Robbery in the first degree: This is considered a Class B felony and is defined as when a person commits robbery and:
  • Causes serious physical injury to any person who is not a participant in the crime, or
  • Is armed with a deadly weapon, or
  • Uses or threatens the immediate use of a dangerous instrument, and causes physical injury to any person who is not a participant in the crime.
  1. Aggravated robbery: This is considered a more serious form of robbery and is charged when a person commits a robbery while being in possession of a firearm.

The key difference between robbery in the second degree and other types of robbery offenses in New York is the severity of the injury caused to the victim and the presence or use of a dangerous instrument or firearm. Robbery in the second degree involves causing physical injury to a person who is not a participant in the crime, using or threatening to use a dangerous instrument, or displaying what appears to be a firearm. Whereas, robbery in the first degree involves causing serious physical injury to a person who is not a participant in the crime, being armed with a deadly weapon, or using or threatening to use a dangerous instrument while causing physical injury to a non-participant.

Aggravated robbery, on the other hand, involves the use of a firearm, regardless of whether or not the victim was injured. It is considered the most serious form of robbery in New York and carries a mandatory minimum sentence of 10 years in prison.

In summary, while all forms of robbery involve forcibly stealing property from another person, the degree of severity of the offense and the resulting consequences for the offender vary depending on the use of dangerous instruments, firearms, and the severity of injury caused to the victim.

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