Court: District Court, E.D. New York; June 7, 2018; Federal District Court
18 U.S.C. § 924(e)(2)(B)(i) defines "physical force" as violent force capable of causing physical pain or injury. The case involves a challenge to a first-degree robbery conviction under New York Penal Law § 160.15(4), which states that a person commits robbery in the first degree by forcibly stealing property while displaying what appears to be a firearm. Such convictions are classified as class B felonies and are viewed as categorically violent felonies. The defendant argues that these convictions do not necessarily involve violent force, citing examples of minimal force in certain cases, and suggesting that individuals could be convicted for throwing away their guns while fleeing.
In contrast, the government asserts that these convictions inherently require violent force. The government cites Second Circuit precedent, arguing that the definition of "forcibly stealing" necessitates the use or threat of force against another person, which cannot be met with de minimis force. The government also argues that displaying a firearm during a robbery constitutes sufficient force.
The Second Circuit's decision in Stuckey confirms that convictions under § 160.15(4) are violent felonies under the Armed Career Criminal Act (ACCA). In Stuckey, the court affirmed that the display of a firearm in the context of a robbery exceeds the violent force required by the ACCA. The defendant's argument regarding intent requirements was rejected, as the court maintained that displaying a firearm during a robbery clearly meets the ACCA's criteria for violent felonies.
The Second Circuit has limited its ruling concerning the use of force to subsections (3) and (4) of New York Penal Law § 160.15, emphasizing that these subsections require violent force. The court refrains from determining whether all New York robberies qualify as 'violent felonies' under the Armed Career Criminal Act (ACCA), specifically regarding whether 'forcible stealing' meets the force criteria established in the 2010 Johnson decision. The motion to dismiss the indictment is denied, as the defendant’s first-degree robbery conviction under § 160.15(4) is classified as a violent felony according to Second Circuit precedent. The court notes that the force necessary for first-degree robbery in New York fulfills the ACCA’s force requirement.
The modified-categorical approach is employed to evaluate whether New York Penal Law § 160.15(4) constitutes a violent felony. This approach involves identifying the elements of the statute tied to the defendant's conviction, assessing the minimum conduct required for such a conviction, and ensuring that the state's application of the statute aligns with the definition of violent felonies under the ACCA. If a state statute is broader than the federal definition, it cannot be considered a predicate violent felony. In cases where a statute is divisible, courts can use limited documents, such as the indictment, to ascertain under which provision the defendant was charged. The modified-categorical approach is applicable here since New York's first-degree robbery statute specifies four different aggravating circumstances, confirming its divisible structure.
Defendant was convicted under subsection (4) of N.Y. Penal Law § 160.15, leading the Court to apply the categorical approach specifically to this subsection. A firearm's display is deemed sufficient to meet the requirement of "violent force" under the ACCA, as outlined in the 2010 Johnson decision. The display of a firearm under this statute is not merely a threat but is interpreted as a significant aggravating factor due to its potential to instill fear in victims, as established by New York Court of Appeals precedents. Specifically, the firearm must be displayed in a manner perceived as threatening, exceeding the ACCA's violent force threshold.
The defendant's argument, centered on the notion of de minimis force, lacks support, as the examples provided relate to general robbery rather than the specific display of a firearm. Hypothetical scenarios presented by the defendant fail to demonstrate a realistic possibility of conviction without physical force, as emphasized by Second Circuit rulings. Consequently, the Court finds that the display of a firearm under N.Y. Penal Law § 160.15(4) categorically qualifies as a violent felony due to the necessary violent force element.
The Court denies the defendant's motion to dismiss the indictment, affirming that both intent and the threatened use of violent force are essential for categorization as a violent felony under the ACCA. The Court does not resolve whether the "forcibly stealing" element independently satisfies the violent force requirement, as this issue remains unaddressed by the Second Circuit. Previous district court rulings that suggest otherwise are considered unpersuasive due to the inherent threat posed in the circumstances of robbery.
