The use of a BB gun instead of a real gun in a robbery is not enough to knock down a robbery charge from first to second degree, a sharply divided Manhattan appeals panel has ruled.
The three-judge majority of the Appellate Division, First Department, concluded on Jan. 12 that two convicted defendants in a Bronx robbery waived the affirmative defense available when the object displayed is not, in the words of Penal Law §160.15[4], “a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged.”
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