People v. Simon

—Judgment unanimously reversed, on the law, and new trial granted. Memorandum: It was error for the court to refuse defendant’s request to charge robbery in the second degree as a lesser included offense of robbery in the first degree on the basis of evidence that the gun used in the robbery was not loaded. That evidence, provided by the People’s witnesses, afforded a reasonable basis for the jury to conclude that the firearm displayed during the robbery "was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged” (Penal…