People v. Cwikla

The District Attorney concedes that under the circumstances of this case, the count of grand larceny in the second degree was a lesser included concurrent count to robbery in the first degree. Defendant’s contention that subdivision 4 of section 160.15 of the Penal Law violates due process in that it places upon him the burden (affirmative defense) of proving that the weapon used in the robbery was not loaded or was inoperable to reduce the charge from robbery in the first degree to the second degree (Penal Law, § 160.10), is without merit. Heretofore the statute (Penal Law, § 160.15, subd 4)…