People v. Smith

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and a new trial ordered.

We conclude that the trial court erred by refusing defendant’s request to charge robbery in the second degree. As noted by the dissenter in the court below, defendant’s confession, which was admitted into evidence as part of the People’s direct case, contained a statement to the effect that the weapon defendant was carrying during the robbery was a toy gun. This statement provided a reasonable basis in the evidence for the jury to conclude that the firearm displayed by defendant “was…