The Appellate Division, First Department, reversed D.H’s conviction for first-degree robbery and remanded D.H.’s case for a new trial. The Appellate Division held that the trial court should have granted D.H.’s request to charge the lesser included offense of third-degree robbery. Because there was a reasonable view of the evidence, taken in the light most favorable to D.H., that the property was not stolen through the use of or the threatened use of a knife, the lesser included offense should have been charged. The jury could have reasonably concluded that the complainant was mistaken as to the weapon involved. In addition, the Appellate Division held that the trial court should have granted D.H.’s request for an adverse inference charge as to surveillance photos taken from the complainant’s livery cab where the robbery occurred. The NYPD collected the photos, but destroyed all but a few of them, which were introduced at trial. The Appellate Division found that both errors affected the jury’s opportunity to consider whether the People met their burden of proof as to the weapon involved in the robbery. Allison Kahl represented D.H. on appeal.
CAL in the Courts
Conviction Reversed and New Trial Ordered in Robbery Case