People v. Basilone — 186 A.D.2d 747

Majority

p. 747

The People of the State of New York, Respondent, v Richard Basilone, Appellant.

— Appeal by the defendant from a judgment of the County Court, Westchester County (LaCava, J.), rendered September 22, 1989, convicting him of robbery in

p. 748

the first degree, robbery in the second degree, grand larceny in the second degree, grand larceny in the third degree, and coercion in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is affirmed.

On appeal, the defendant argues that the court incorrectly refused to instruct the jury on the affirmative defense to the charge of robbery in the first degree (Penal Law § 160.15 [4]). We disagree. It was proper for the court to decline to issue such a charge since the defendant failed to meet his burden of making a prima facie showing that the revolver displayed by the codefendant during the course of the robbery was unloaded or inoperable (see, People v Cotarelo, 71 NY2d 941 ; People v Proctor, 151 AD2d 788 ; People v Stoute, 140 AD2d 728 ). Bracken, J. P., Harwood, Miller and Copertino, JJ., concur.

Cases cited

People v. Cotarelo 71 NY2d 941 N.Y. 1988-04-26 p. 748
People v. Proctor 151 AD2d 788 N.Y. App. Div. 1989-06-26 p. 748