People v. Leiva, 63 N.Y.2d 281 (1984)

A conviction for first-degree robbery based on the display of a dangerous instrument other than a firearm (e.g., a knife) can serve as the predicate felony for a conviction of first-degree criminal use of a firearm, even when another participant displays what appears to be a firearm during the robbery.

Summary

Miguel Leiva was convicted of first-degree robbery (displaying a knife) and first-degree criminal use of a firearm after he and an accomplice robbed Merrill Fuchs. The accomplice displayed what appeared to be a handgun. Leiva argued that using first-degree robbery as the predicate for the firearm charge was inappropriate. The New York Court of Appeals affirmed the conviction, holding that because the first-degree robbery conviction was based on the display of a knife (a dangerous instrument) and not a firearm, it could properly serve as the predicate for the firearm charge. The court declined to address the issue of whether a robbery conviction predicated on the use of a firearm could also support a charge of criminal use of a firearm.

Facts

On October 24, 1980, Miguel Leiva and Reynaldo Barrios robbed Merrill Fuchs in Manhattan.

Leiva displayed what appeared to be a handgun, but was actually a toy pistol.

Barrios wielded a knife during the robbery.

Leiva and Barrios were apprehended.

Procedural History

Leiva was indicted on four counts: (1) first-degree robbery (displaying a knife), (2) second-degree robbery (accomplice presence), (3) second-degree robbery (displaying what appeared to be a handgun), and (4) first-degree criminal use of a firearm.

A jury found Leiva guilty on all four counts.

He was sentenced to concurrent prison terms on each count.

The Appellate Division, First Department, affirmed the conviction without opinion.

The New York Court of Appeals granted further review.

Issue(s)

Whether first-degree robbery, predicated on the display of a dangerous instrument other than a firearm, is an appropriate predicate crime to support a conviction for first-degree criminal use of a firearm.

Holding

Yes, because the defendant’s first-degree robbery conviction was based on the display of a knife, not a gun, it properly serves as a predicate crime to support a conviction for criminal use of a firearm.

Court’s Reasoning

The court reasoned that the defendant’s argument, that it is inappropriate to use first-degree robbery as a predicate crime for criminal use of a firearm when every robbery involving a gun qualifies as an armed felony, did not apply to the facts of this case.

The court emphasized that Leiva’s first-degree robbery conviction was based on the display of a dangerous instrument – specifically, a knife – and not a firearm.

Because the robbery conviction was based on a dangerous instrument other than a firearm, the court concluded that the first-degree robbery conviction, a class B felony, properly served as a predicate crime to support a conviction for criminal use of a firearm.

The court specifically declined to address the broader question of whether concurrent prosecution for both criminal use of a firearm and first-degree robbery based on the presence or apparent presence of a firearm would be appropriate, stating that this issue