author: Abdus-Salaam, J. Rivera, J.

text:
    [74 NE3d 639, 52 NYS3d 256]
    The People of the State of New York, Respondent, v Trevor Anderson, Appellant.
    Argued February 14, 2017;
    decided April 4, 2017

      POINTS OF COUNSEL

      Lynn W.L. Fahey, Appellate Advocates, New York City (A. Alexander Donn of counsel), for appellant.

      Eric Gonzalez, Acting District Attorney, Brooklyn (Terrence F. Heller and Leonard Joblove of counsel), for respondent.
   OPINION OF THE COURT

Abdus-Salaam, J.

Defendant Trevor Anderson was convicted, upon a jury verdict, of attempted murder in the second degree (Penal Law §§ 110.00, 125.25 [1]) and criminal possession of a weapon in the second degree (Penal Law § 265.03 [1] [b]). Defendant argues that he was deprived of a fair trial by the prosecutor’s use of PowerPoint slides during summation, and that defense counsel was ineffective for failing to object to the use of the slides. Defense counsel, who objected to one of the PowerPoint slides, was not ineffective for failing to challenge the others, as the vast majority were not objectionable.

I.

According to the People’s proof at trial, on March 14, 2010, on a Brooklyn street, defendant approached Erick Brown-Gordon, who was dating defendant’s ex-girlfriend Diana Perez, and shot him twice in the abdomen. When Brown-Gordon turned around and tried to flee, defendant shot him twice more, in the back. Defense counsel argued at trial that Perez and Brown-Gordon were not credible witnesses and had falsely identified defendant.

The Appellate Division rejected defendant’s challenges to his conviction and affirmed the judgment (130 AD3d 1055 [2d Dept 2015]). A Judge of this Court granted defendant leave to appeal (26 NY3d 1142 [2016]). We now affirm.

II.

In People v Ashwal (39 NY2d 105 [1976]), this Court explained that it is “fundamental” that counsel must stay within “the four corners of the evidence” during summation and that the prosecutor “may not refer to matters not in evidence or call upon the jury to draw conclusions which are not fairly inferable from the evidence” (id. at 109 [citations omitted]; see also CJI2d[NY] Pre-Summation Instructions [“(summations provide each lawyer an opportunity to review the evidence and submit for (the jury’s) consideration the facts, inferences, and conclusions that they contend may properly be drawn from the evidence”]). The PowerPoint slides used by the People in this case were consistent with these principles. As we observed in People v Santiago (22 NY3d 740, 751 [2014]), PowerPoint “slides depicting an already admitted photograph, with captions accurately tracking prior . . . testimony, might reasonably be regarded as relevant and fair . . . commentary on the . . . evidence, and not simply an appeal to the jury’s emotions.”

At bottom, a visual demonstration during summation is evaluated in the same manner as an oral statement. If an attorney can point to an exhibit in the courtroom and verbally make an argument, that exhibit and argument may also be displayed to the jury, so long as there is a clear delineation between argument and evidence, either on the face of the visual demonstration, in counsel’s argument, or in the court’s admonitions. We reject defendant’s position that trial exhibits in a PowerPoint presentation may only be displayed to the jury in unaltered, pristine form, and that any written comment or argument superimposed on the slides is improper. Rather, PowerPoint slides may properly be used in summation where, as here, the added captions or markings are consistent with the trial evidence and the fair inferences to be drawn from that evidence. When the superimposed text is clearly not part of the trial exhibits, and thus could not confuse the jury about what is an exhibit and what is argument or commentary, the added text is not objectionable. The slides, in contrast to the exhibits, are not evidence. The court properly instructed the jury that what the lawyers say during summations is not evidence, and that in finding the facts, the jury must consider only the evidence. In this case, as was appropriate, the jury was told that the physical exhibits admitted into evidence would be made available to them, while the slides were not supplied to the jury during deliberations.

Given the parameters of the permissible use of PowerPoint slides in summation, counsel was not ineffective for failing to object. For example, some of the slides were pictures of exhibits with captions or numbers inserted to highlight the relevant portion of those exhibits. Two slides showed a portion of the victim’s medical records which included a diagram depicting the location of four wounds. One slide showed the enlarged diagram, with superimposed text reading “Two Gun Shot Wounds to front” and “Two Gun Shot Wounds to back.” That text accurately reflected the information in the exhibit. Another slide showed the same diagram, with numerals on each of the respective markings representing the four wounds. Defendant asserts that the People improperly altered the medical records to reflect their theory that the victim was shot four times, where the records purportedly show that he was shot twice. However, the medical records are not clear as to whether Brown-Gordon was shot twice and sustained four wounds (i.e., one entrance and one exit wound per shot), or was shot three or four times. The text inserted by the People referred to wounds, not shots, and the prosecutor argued, consistent with Brown-Gordon’s testimony, that he had been shot four times. These slides, and the oral argument by the prosecutor, were fair comment on the evidence and the reasonable inferences to be drawn from that evidence.

Defendant also argues that his counsel was ineffective for failing to object to slides that showed photographs, received into evidence, of the street on which the shooting had occurred. On two of those slides, the prosecutor had superimposed yellow circles around street lamps which witnesses had testified had sufficiently illuminated the street so that they were able to see defendant. On another slide, there was a superimposed circle around the location where a testifying police officer said he had found three shell casings. These added markings did not misrepresent the evidence.

Additionally, we reject defendant’s argument that defense counsel was ineffective for failing to object to the prosecutor’s use of a slide that showed defendant’s arrest photograph, which had been received in evidence, surrounded by a superimposed circle, with boxes containing text summarizing the People’s theory of the case. Defendant argues that this slide improperly altered the trial evidence and that the text boxes surrounded defendant’s face as if he were a target. In our view, the added text accurately tracked the witnesses’ testimony and the fair inferences to be drawn from the evidence, and the placement of the text boxes around defendant’s face was “not simply an appeal to the jury’s emotions” (Santiago, 22 NY3d at 751).

Nonetheless, even accepting defendant’s position that this slide was objectionable, the display of this slide alone did not deprive defendant of a fair trial. Instead, as in Santiago, “the objection to the PowerPoint presentation that defendant now raises is not so ‘clear-cut’ or ‘dispositive’ an argument that its omission amounted to ineffective assistance of counsel” (22 NY3d at 751).

Finally, to the extent that the court made a Sandoval ruling, defendant’s claim that the ruling was in error is unpreserved (see People v Hawkins, 11 NY3d 484, 494 [2008]).

Accordingly, the order of the Appellate Division should be affirmed.

Rivera, J.

(dissenting). The prosecutor’s use of digitally edited reproductions of exhibits to convey inferences and misinformation, as well as to project defendant’s image as the “face of death,” exceeded the bounds of proper summation. A prosecutor may not use altered copies of exhibits to suggest that the evidence unequivocally establishes disputed facts or to distract the jury by playing to emotion. That, however, is what happened here.

The PowerPoint presentation employed by the prosecutor during summation included a modified version of defendant’s arrest photograph, with the picture of his head at the center of a symbolic target. This target was surrounded by eight boxes containing both facts of the case and the prosecutor’s inferences and mischaracterizations of the evidence, all pointing directly at defendant’s face. The reimagining of defendant’s likeness — through a powerful visual medium — distracted the jury from the unaltered trial evidence and the relevant facts, and was accompanied by the prosecutor’s verbal statements that appealed to passion, not reason.

The error was compounded by the prosecutor’s showcase of edited medical exhibits in two additional slides. The slides of the victim’s hospital records contained superimposed words and numbers which, in the context of the presentation, misled the jury as to what the actual exhibits showed in order to suggest that certain disputed facts were conclusively established at trial, and to thereby bolster witness testimony. These alterations were the equivalent of using unadmitted evidence.

The strategic use of technology to display visual images enhanced the prejudicial impact of the edited reproductions of these exhibits, and when combined with defense counsel’s failure to object to the offensive PowerPoint slides, denied defendant a fair trial. Even in the face of earnest efforts to make the distinction between admitted evidence and argument clear, overlaying evidence with embedded inferences presents issues that cannot be overcome through jury instruction. I would reverse and remit for a new trial.

I.

During summation, the prosecutor may marshal the evidence so as to persuade the jury of defendant’s guilt beyond a reasonable doubt, based on the People’s view of the facts (CJI2d[NY] Pre-Summation Instructions; 6 Am Jur Trials 873; CPL 260.30 [9]). The prosecutor may

“comment upon every pertinent matter of fact bearing upon the questions the jury have to decide. . . . And although counsel is to be afforded the widest latitude by way of comment, denunciation or appeal in advocating [counsel’s cause,] summation is not an unbridled debate in which the restraints imposed at trial are cast aside so that counsel may employ all the rhetorical devices at [counsel’s] command. There are certain well-defined limits” (People v Ashwal, 39 NY2d 105, 109 [1976] [internal quotation marks and citations omitted]).

It is a fundamental tenet of our legal system that the People’s “interest . . . in a criminal prosecution is not that it shall win a case, but that justice shall be done” and thus while the prosecutor in summation “may strike hard blows, [the prosecutor] is not at liberty to strike foul ones” (Berger v United States, 295 US 78, 88 [1935]; People v Jones, 44 NY2d 76, 80 [1978]).

The cardinal rule is that a summation, whether by the People or the defense, “must stay within the four corners of the evidence and avoid irrelevant comments which have no bearing on any legitimate issue in the case” (Ashwal, 39 NY2d at 109 [internal quotation marks and citation omitted]). In adherence to this rule, the prosecutor cannot misstate the evidence, or advance misleading representations to encourage inferences of guilt based on facts not in evidence (People v Wragg, 26 NY3d 403, 411-412 [2015]). “Above all [the prosecutor] should not seek to lead the jury away from the issues by drawing irrelevant and inflammatory conclusions which have a decided tendency to prejudice the jury against the defendant” (Ashwal, 39 NY2d at 110).

These proscriptions apply to the prosecutor’s use of the original physical exhibit or a technologically-generated reproduction in summation. I do not accept the majority’s rule that “a visual demonstration during summation is evaluated in the same manner as an oral statement” (majority op at 72). Such an approach ignores the impact of visual aids on the viewer and assumes that the medium and manner by which ideas are communicated has no independent effect on the way those ideas are deconstructed and understood. It also ignores the enhanced effect of combining imagery with oral commentary.

II.

Every person who relies on visual aids to communicate a message is likely cognizant of what the science bears out: the medium of delivery has the potential to powerfully influence the way the message is heard and retained (see Lucille A. Jewel, Through a Glass Darkly: Using Brain Science and Visual Rhetoric to Gain a Professional Perspective on Visual Advocacy, 19 S Cal Interdisc LJ 237, 293 [2010]). Research shows that pictures are typically remembered better than words (see Mary Susan Weldon & Henry L. Roediger, III, Altering Retrieval Demands Reverses the Picture Superiority Effect, 15 Memory & Cognition 269, 269 [1987]). Indeed,

“[w]ith visual information, people believe what they see and will not step back and critically examine the conclusions they reach, unless they are explicitly motivated to do so. Thus, the alacrity by which we process and make decisions based on visual information conflicts with a bedrock principle of our legal system — that reasoned deliberation is necessary for a fair justice system” (Jewel, supra, at 293).

This can make the use of images at trial particularly problematic when combined with language, as “annotating images with text . . . exacerbates the interpretive distortion of images” (Elizabeth G. Porter, Taking Images Seriously, 114 Colum L Rev 1687, 1755 [2014]). Particularly troubling in the legal context are recent studies showing “that photos that relate to, but do not provide any evidence for, a claim . . . can nudge people towards believing that the related claims are true, whether they are true or not” (Eryn Newman & Neal Feigen-son, The Truthiness of Visual Evidence, 25 The Jury Expert 1, 1 [Nov. 2013]; see also Eryn Newman et al., Nonprohative Photographs [or Words] Inflate Truthiness, 19 Psychonomic Bulletin & R 969, 973 [2012] [studies have suggested that “the mere presence of nonprobative information such as photos might rapidly inflate the perceived truth of many types of true and false claims” and that this effect can last for up to two days]). Furthermore, “images are much more immediately and tightly linked with emotion than is text,” so “while images offer a wealth of creative and effective communication tools for lawyers, the very elements that make them persuasive pose dangers to the integrity of the decisionmaking process” (Porter, supra, at 1755-1756).

I have previously addressed how visual imagery can be particularly impactful in summation,

“when ‘any argument that drones on for 5 or 10 minutes on any one point, regardless of how effective its content is, will lose the jury’ (Thomas A. Mauet, Trial Techniques 394 [8th ed 2010]). Visual aids are a welcome relief since ‘[b]y the end of the trial, jurors are looking for new and fresh ways of receiving evidence and arguments’ {id.). The use of technology at the end of closing argument may be particularly powerful. As one commentator has noted, ‘[t]he right to the final word has a psychological impact that makes it a forensic prize’ (Siegel, NY Prac § 397 at 692 [5th ed 2011]).” (People v Santiago, 22 NY3d 740, 754 [2014, Rivera, J., dissenting].)

The last side to comment and deploy a visual presentation of its view of the case therefore gains an edge in persuading the jury as it commences deliberations. In the end, if visual tools did not enhance the rhetorical impact of the spoken word or persuade the viewer of the logic of an advocate’s reasoning, the prosecutor would not take the time to mark up photos of exhibits, embed those photos with text and images suggesting defendant’s guilt, and present those images in a PowerPoint slide show, as was done here.

Given the potential that crafted visual demonstrations have to influence the viewer differently and more memorably than the listener of words spoken without visual accompaniment, in order to “stay within the four corners of the evidence,” a prosecutor may display an image of an altered exhibit if the edited version is intended to assist the jury with its fact-finding function, as opposed to drawing the jury’s attention away from the relevant issues through prejudicial rhetoric; expresses information that places the exhibit’s relevance in context, such as how the exhibit relates to the question of defendant’s guilt; accurately and precisely reflects the admitted testimony and documentary evidence, as in the case of superimposed text of a direct quote; or draws attention to some relevant aspect of the exhibit with, for example, arrows, circles, or underlines. Such overlays do no more thán represent and organize the evidence clearly and in a manner that the prosecutor believes will ultimately persuade the jury to convict.

By contrast, the prosecutor may not seek to influence the jury’s deliberative process by taking an exhibit, copying or enlarging it, and then superimposing on the image inferences to be drawn from the evidence about defendant’s guilt. An image of an exhibit embedded with an inference enhances the risk that jurors will treat the inference as an undisputed fact, especially where the image is presented alongside reproductions of other exhibits that contain superimposed testimony. In that way, the altered image elevates argument into fact. Allowing such images also increases the risk that unreasonable inferences will be adopted by the jury. Similarly, the prejudicial impact of inferences that appeal to emotion rather than fact is amplified when combined with a visual image. While a phrase mentioned once in passing may not leave an indelible mark or be sufficiently egregious on its own to sway the jury, the odds that an inflammatory remark will be noted, remembered, and revisited during the deliberative process increase when that remark is presented visually on an edited exhibit (Miriam Z. Mintzer & Joan Gay Snodgrass, The Picture Superiority Effect: Support for the Distinctiveness Model, 112 Am J Psychol 113, 113 [1999] [explaining that pictures are easier to remember than roughly equivalent denotational words]).

The majority’s assertion that a jury knows the added text is not part of either the trial exhibits or evidence is unresponsive to the issues presented on this appeal (majority op at 72). We are not asked to assume that a juror could not make this distinction, but rather to consider the prejudice associated with overcoming the visual cues. Moreover, it is no answer to state that the jury only has access to the original exhibits and not the prosecutor’s summation materials when the prosecutor has the last word and defense counsel cannot respond to the inferences in the exhibit (compare Siegel, supra § 397 [“Plaintiffs are comforted throughout their summations by the knowledge that the defendant will not get another chance to address this jury”]). Of course, there is no assurance jurors will confirm their impression of the facts by referring back to the exhibits.

Rather than rely on the judge’s instructions to “cure” the effect of any possible confluence of inference and fact, or to dispel confusion after the jury has been exposed to the edited exhibit image, it is simply easier — and fairer — to maintain the separation between exhibits and the prosecutor’s inferences. As Justice Thurgood Marshall noted, “it is quite unrealistic to believe that instructions to disregard evidence that a jury might treat in a manner highly prejudicial to a defendant will often be followed” (Chaffin v Stynchcomhe, 412 US 17, 41 [1973, Marshall, J., dissenting]). Judge Learned Hand similarly expressed that under some circumstances a limiting instruction may be “[a] recommendation to the jury of a mental gymnastic which is beyond, not only their powers, but anybody’s else [sic]” (Nash v United States, 54 F2d 1006, 1007 [2d Cir 1932]). As such, it is preferable to avoid the problem before it is necessary to cure it. This way the jury will not confuse fact with the prosecutor’s inference or suggestion.

III.

Defendant’s arrest photo, taken 10 days after the incident, was admitted into evidence despite no apparent relevance to the issues. The victim identified defendant, whom he had met on multiple occasions, as the assailant three separate times during the trial. During the testimony of a subsequent witness, the People offered the photo into evidence as representative of defendant’s appearance on the day of the lineup — a matter not in dispute. After defense counsel objected on relevance grounds the judge admitted the photo, stating “if that’s the only problem or objection, I will receive it, and the jury will find it helpful, or perhaps not.”

While “[a]n arrest photograph may be admitted into evidence in order to establish that a defendant’s appearance was different at the time of the commission of the crime than at trial” (People v Ahmr, 22 AD3d 593, 594 [2d Dept 2005]), to show defendant’s appearance on the date of the crime (People v Santana, 162 AD2d 191, 192 [1st Dept 1990]), or for other identification issues (see People v Richards, 220 AD2d 268, 269 [1st Dept 1995]), when “the complainant and the arresting officer had no trouble identifying defendant in court, there [i]s no legitimate need for the prosecutor to offer into evidence defendant’s arrest photographs” (People v Black, 117 AD2d 512, 513 [1st Dept 1986]; see also State v Lazo, 209 NJ 9, 19, 34 A3d 1233, 1239 [2012] [“(I)f identification is an issue and the State’s use of a mug shot is reasonably related to that issue, an arrest photo may be admitted only if it is presented in as neutral a form as possible” (internal quotation marks omitted)]). While the prejudice to the defense from the admission of an arrest photo is most often related to its implication that the defendant has a criminal record (see e.g. United States v Harrington, 490 F2d 487, 490 [2d Cir 1973]), there is an additional source of potential prejudice, as when the photo is unrelated to identification testimony and serves only to show defendant in a negative light (see Paul Lashmar, How to Humiliate and Shame: A Reporter’s Guide to the Power of the Mugshot, 24 Soc Semiotics 56, 56-87 [2014] [examining the history and cultural significance of mug shots]).

In defendant’s case, the prosecutor relied on the exhibit twice in summation and not to argue a disputed question of identification, but for impassioned rhetorical emphasis. An unedited slide of the exhibit opened the prosecution’s PowerPoint presentation, over which the prosecutor remarked, “[t] hat’s the face of the man that [the victim] told you he saw right before the defendant shot him.” The prosecutor ended his summation with a highly edited version of the exhibit, one that placed defendant’s head in what appears to be a target. The composition of the arrest photo, overlaid with an orange circle and text boxes with arrows pointing at defendant’s face, containing snippets of testimony and the prosecutor’s inferences, is clearly designed to manipulate the jury’s reasoned deliberation by appealing to their emotions and prejudices. •

This imagery is reminiscent of cases in which edited arrest photos were found to be improper summation material because of superimposed descriptive labels and inferences which appealed to passion. In re McKague (182 Wash App 1008 [2014]) involved a prosecutor’s slide which featured the defendant in the center of a circle with the word “GUILTY” overlaid over his face. Text surrounded the circle, with each phrase pointing towards the defendant. The phrases included text that summarized the trial testimony such as “intended to commit theft,” “During the taking-the defendant resorted to force,” “took can of oysters,” etc. (id. [emphasis omitted]). The court found that the “slide was a calculated device employed by the prosecutor to manipulate the jury’s reasoned deliberation and impair its fact finding function. It substantially undermined [the defendant’s] right to a fair trial” (id.). Similarly, the court sitting en banc in In re Glasmann (175 Wash 2d 696, 701-702, 286 P3d 673, 676 [2012]) ordered a new trial because the prosecutor committed pronounced and persistent misconduct when he overlaid the phrase “guilty” across defendant’s arrest photo on three separate occasions, as well as phrases like “do you believe him?” and “why should you believe anything he says about the assault?” (emphasis omitted; see also State v Walker, 182 Wash 2d 463, 341 P3d 976 [2015]). In State v Walter (479 SW3d 118, 127 [Mo 2016]), the en banc court found overlaying the word “guilty” over defendant’s booking photo amounted to prejudicial error requiring a new trial (emphasis omitted; see also Watters v State, 313 P3d 243 [Nev 2013] [booking photo overlaid with the word “guilty” used during a PowerPoint in People’s opening statement so prejudicial as to require a new trial (emphasis omitted)]).

The circle around defendant’s head, surrounded by numerous text-filled boxes with arrows pointing towards him, with one text box asserting that defendant “[l]ay in wait for [the victim] with .45 cal handgun,” is equivalent to defendant’s image superimposed with the word “guilty” over it. Just as in In re Glasmann, this imagery, along with a statement not in evidence that implies defendant’s actions were predatory, manifests an appeal to the passions and prejudice of the jury (175 Wash 2d at 711, 286 P3d at 681). The slide is a clear visual communication to the jury that the defendant is a frightening man whom the State has dedicated significant resources to target.

The edited exhibit does not even comply with the majority’s rule because the slide is not merely a display of a verbal argument or the equivalent to pointing at something. The prosecutor could not physically draw a circle with arrows pointing at defendant and, significantly, could not simultaneously have asserted all the statements contained in the text boxes. That imagery is only possible through the editing of the exhibit. Moreover, contrary to the majority’s claims, the text in the final slide does not “accurately track[ ] the witnesses’ testimony and the fair inferences to be drawn from the evidence” (majority op at 74). The notion that defendant “[l]ay in wait for” the victim outside is belied by the trial testimony that he told his ex-girlfriend that he was on his way into the building. When she tried to dissuade him, he told her if she did not come out he would go in. Similarly, there was no testimony at trial to suggest that the victim was shot with an “illegal” handgun as the gun was never recovered. Other text boxes present disputed claims as facts, such as the number of shots and the distance between the shooter and the victim. The text boxes blended the facts, inferences, and speculation and did not present a “clear delineation between argument and evidence” (id. at 72). Nor does this final slide avoid “an appeal to the jury’s emotions” (id. at 74). The intent of the edited exhibit was laid bare when, during the display of the slide, the prosecutor dramatically declared that defendant’s image: “was the face of death on March 14, 2010.”

In addition, the prosecutor’s use of slides depicting edited images of the victim’s hospital records was improper because the slides were misleading. The added text and numbers appeared to scientifically confirm the victim was shot four times, twice in the front and then twice in the back, when the hospital records did not establish the number and order of shots. This is a further example of why an inference — here that the victim was shot four times, twice in the back — can be confused as an undisputed fact and should not be superimposed on a reproduction of an exhibit.

These slides were additionally prejudicial to defendant because medical documents, like the hospital records here, have an air of objectivity that can carry significant weight with the jury (see Vella v Commissioner of Social Sec., 394 Fed Appx 755, 757 [2d Cir 2010] [medical records considered “objective evidence”]). The prosecutor used the slides to convey that the victim was shot four times, and stated that the exhibits were physical evidence corroborating the victim’s testimony to that effect. Thus, the exhibit was used as objective evidence to bolster the victim’s testimony and undermine the defense’s argument that the victim was not telling the truth.

IV.

The prosecutor exceeded the scope of proper summation by including in his PowerPoint presentation edited slides featuring defendant’s arrest photo and hospital records that misrepresented the evidence, misled the jury, and appealed to emotion. Defense counsel should have objected during summation (People v Wright, 25 NY3d 769, 780 [2015]). His failure to do so deprived defendant of meaningful representation, and left defendant vulnerable to the force of these slides on the jury’s deliberations. There was no strategic reason for counsel’s silence (id.), as he was aware before summations that the PowerPoint presentation would be — as counsel described it — “a force to be reckoned with.” Given the impact of summation, counsel’s failure to object constituted ineffective assistance of counsel (id.; People v Fisher, 18 NY3d 964, 967 [2012]). For the reasons I have discussed, the display of these slides, and defense counsel’s failure to object, denied defendant a fair trial and was highly prejudicial (People v Baldi, 54 NY2d 137, 147 [1981]; Strickland v Washington, 466 US 668, 686 [1984]).

I dissent.

Chief Judge DiFiore and Judges Stein, Garcia and Wilson concur; Judge Rivera dissents in an opinion in which Judge Fahey concurs.

Order affirmed.

      . The slides that did not display the exhibits but summarized the evidence at trial were not objectionable, as they did not “call upon the jury to draw conclusions which are not fairly inferrable from the evidence” (Ashwal, 39 NY2d at 110).

      . The text in the boxes stated “3/14/10 - Armed himself with a loaded and operable illegal .45 cal handgun”; “Made a series of calls to Diana immediately before shooting”; “Lay in wait for Erick Brown-Gordon with .45 cal handgun”; “Fired .45 handgun twice from less than 8 feet away as Erick faced him”; “Fired .45 handgun twice more as Erick ran from deft”; “His bullets hit Erick twice in front and twice in back”; “Defendant grabbed Diana and fled scene”; and “3/24/10 - Erick identified deft as shooter in line-up.”

      . For a summary of much of this research and the case law, see Matthew S. Robertson, Note, Guilty As Photoshopped: An Examination of Recent Case Law and Scholarship Regarding the Use of Non-Probative Images in the Courtroom, 55 Washburn LJ 731, 732 (2016).

      . “Visual presentations may send subconscious messages to jurors, creating a significant risk that jurors reach verdicts based on emotionalism and leaps in logic rather than on the facts in evidence” (Janet L. Hoffman, Visual Advocacy: The Effective Use of Demonstrative Evidence at Trial, 30 Litig J 9 [2011]).

      . Defense counsel’s objection to this statement was overruled.


source: Caselaw Access Project

author: Chief Judge DiFiore.

license: Public Domain

text:
    [74 NE3d 649, 52 NYS3d 266]
    The People of the State of New York, Respondent, v Leonard Williams, Appellant.
    Argued February 14, 2017;
    decided April 4, 2017

      POINTS OF COUNSEL

      Lynn W.L. Fahey, Appellate Advocates, New York City (A. Alexander Bonn of counsel), for appellant.

      Eric Gonzalez, Acting District Attorney, Brooklyn CLeonard Joblove and Jean M. Joyce of counsel), for respondent.
   OPINION OF THE COURT

Chief Judge DiFiore.

Defendant maintains that he was deprived of a fair trial by the People’s PowerPoint presentation, particularly insofar as it displayed slides that contained annotated images of trial exhibits. We conclude that, here, where the trial court, in the exercise of its discretion, took prompt corrective action to ensure that the jury was not being misled and gave strong instructions concerning summation, defendant was not deprived of a fair trial.

Shortly after midnight on December 20, 2009, several men broke into the victim’s apartment. The victim, who knew defendant from the neighborhood, recognized defendant as one of the intruders who attacked him. Defendant shot the victim, cut him with a knife and poured bleach over his head. The victim testified at trial that he had been on the telephone with his brother when the men burst into his apartment.

At trial, the People introduced surveillance footage of the street and sidewalk where the victim lived from cameras located on the building neighboring the victim’s apartment, as well as still photographs from that footage. The exhibits were authenticated by the custodian of the cameras on the neighboring building. It was snowing heavily at the time of the offense and the video depicts six individuals in hooded clothing walking along the sidewalk through the snow. At one point, the video shows an SUV driving down the block. After the SUV proceeded through the traffic light at the corner, the six individuals can be seen running into what appears to be the victim’s building. A short time later, the camera shows the individuals exiting the building and running away.

The victim’s brother testified at trial. During his testimony, the prosecutor displayed still photos of the surveillance video — in particular, of the SUV that drove down the block near the time of the crime. The victim’s brother agreed that he had been driving down the same block on the night of the blizzard around the time of the offense and that he had been speaking with the victim on the phone when he was attacked. The victim’s brother further agreed that the truck he drove at that time “looked like” the one in the still shot, but testified that he was unable to definitively identify the vehicle as his.

The victim’s brother also testified that, when he was driving down the block, he saw a few people wearing hooded clothing walking on the sidewalk. One of the individuals was short in stature and the victim’s brother testified that he thought he recognized that person as defendant — “[t]he only short person I know.” Indeed, he greeted the man, saying “what up,” and the man responded with a wave. The victim’s brother admitted that he did not see defendant’s face, because it was dark outside and there was a blizzard going on, but testified that he “thought it was him.”

The trial court, immediately before closing arguments, gave the jury detailed preliminary instructions, telling them that they alone were the finders of fact, that what the lawyers say in summation was “simply argument submitted for your consideration,” that nothing the lawyers say in summation was evidence and that the jury’s recollection of the evidence controlled, regardless of what the attorneys said.

In summation, the prosecutor displayed a PowerPoint presentation containing slides of images of the trial exhibits, some of which had been annotated through the PowerPoint program with text, circles or arrows. Significantly, the prosecutor displayed slides depicting the still photographs from the surveillance video that he had showed the victim’s brother, which had been annotated with captions such as, “[the victim’s brother’s t]ruck” and “[the victim’s brother] sees Defendant,” despite the witness’s inability to make those definitive identifications in his trial testimony. Defense counsel raised objections at various points, several of which were sustained. In addition, the trial court voiced its own concerns, at one point telling the jury to disregard the prosecutor’s annotations to the images of the trial exhibits. The court ultimately curtailed the PowerPoint presentation because of those annotations, stating that it was “not allowing any more . . . superimposed words.”

Following summations, defense counsel moved for a mistrial, arguing that there had been improper comment in several areas. Although the court indicated that it was “sympathetic” to certain of defendant’s arguments, it denied the mistrial. When the court asked whether defendant “want[ed] anything short of a mistrial,” counsel declined. Defendant was convicted of burglary in the first degree, assault in the second degree and criminal possession of a weapon in the second degree. The jury acquitted him of robbery in the first, second and third degrees.

The Appellate Division affirmed, holding that, to the extent defendant’s arguments were preserved, he was not deprived of a fair trial by either the PowerPoint presentation or the prosecutor’s summation (123 AD3d 1152 [2d Dept 2014]). The Court also rejected defendant’s ineffective assistance of counsel claim. A Judge of this Court granted defendant leave to appeal (25 NY3d 1173 [2015]), and we now affirm.

It is well-settled that attorneys are entitled to broad latitude in commenting on pertinent matters of fact in summation, so long as they limit themselves to relevant matters within the four corners of the evidence (see People v Ashwal, 39 NY2d 105, 109 [1976]).

“[T]he District Attorney may not refer to matters not in evidence or call upon the jury to draw conclusions which are not fairly inferrable from the evidence. Above all [,] he [or she] should not seek to lead the jury away from the issues by drawing irrelevant and inflammatory conclusions which have a decided tendency to prejudice the jury against the defendant” (Ashwal, 39 NY2d at 109-110 [citations omitted]).

When determining whether improper statements deprived a defendant of a fair trial, we have considered it to be of “vital significance whether the trial court . . . ‘gave standing to the statement of the District Attorney as legitimate argument’ ” or whether the court took prompt corrective action, such as issuing a curative instruction (People v Broady, 5 NY2d 500, 516 [1959] [citation omitted]).

There is no inherent problem with the use of a PowerPoint presentation as a visual aid in connection with closing arguments. Indeed, it can be an effective tool. But, the long-standing rules governing the bounds of proper conduct in summation apply equally to a PowerPoint presentation. In other words, if it would be improper to make a particular statement, it would likewise be improper to display it (see People v Anderson, 29 NY3d 69 [2017] [decided today]). If counsel is going to superimpose commentary to images of trial exhibits, the annotations must, without question, accurately represent the trial evidence (see e.g. People v Santiago, 22 NY3d 740, 751 [2014]). Moreover, any type of blatant appeal to the jury’s emotions or egregious proclamation of a defendant’s guilt would plainly be unacceptable (see e.g. State v Walker, 182 Wash 2d 463, 341 P3d 976 [2015]).

Here, defendant argues that he was deprived of a fair trial by the annotation of images of the trial exhibits to imply that the victim’s brother, in his testimony, had positively identified either his truck or defendant from the surveillance video because this misrepresented the witness’s testimony. Significantly, the trial court was very attuned to the annotated slides and, in the exercise of its discretion, ultimately stopped the slideshow and instructed the jury to disregard the slides (see People v Galloway, 54 NY2d 396, 399 [1981]). To the extent any slides may have misrepresented the trial evidence, the trial court instructed the jury on more than one occasion that the attorneys’ arguments were not evidence and that the jury was the sole judge of the facts. Defense counsel also rejected the court’s offer of any less drastic relief after the denial of the mistrial motion. Thus, under these circumstances, defendant was not deprived of a fair trial.

Notably, the actual trial exhibits remained pristine for the jury’s examination. In any particular case, where there is a concern that it will not be clear to the jury that the annotated PowerPoint slides are not in evidence, or a substitute for the actual evidence, a specific jury instruction will serve to emphasize that such representations are merely argument by counsel.

Defendant raises several additional arguments directed to aspects of the prosecutor’s summation. Some of them are preserved and others are raised in the context of an ineffective assistance of counsel claim. These arguments are without merit. As previously stated, the court’s prompt corrective action cured any potential prejudice. In addition, viewing trial counsel’s performance in its totality, meaningful representation was provided (see People v Speaks, 28 NY3d 990, 992 [2016]). The remarks at issue here were not “so egregious that counsel’s failure to object render[ed] his overall representation constitutionally defective” (People v Wragg, 26 NY3d 403, 411 [2015]).

Accordingly, the order of the Appellate Division should be affirmed.

Judges Rivera, Abdus-Salaam, Stein, Fahey, Garcia and Wilson concur.

Order affirmed.


author: Fahey, J. Abdus-Salaam, J. Wilson, J.

text:
    [75 NE3d 84, 52 NYS3d 692]
    The People of the State of New York, Respondent, v Charles Smith, Appellant.
    Argued February 9, 2017;
    decided March 28, 2017

      POINTS OF COUNSEL

      Arnold & Porter LLP, New York City (Craig A. Stewart, Alexandra L. Mitter and Joshua D. Weiss of counsel), and Lynn W.L. Fahey, Appellate Advocates, New York City (Paul Skip Laisure of counsel), for appellant.

      Richard A. Brown, District Attorney, Kew Gardens (William H. Branigan, John M. Castellano and Joseph N. Ferdenzi of counsel), for respondent.
   OPINION OF THE COURT

Fahey, J.

Here we face the question of whether the facts of this case fit within our analysis in People v Lopez (73 NY2d 214 [1989]). We conclude they do. In Lopez, there was testimony that a defendant placed one of his hands under his clothing and conveyed to the witness that he had a gun. We held this evidence to be legally sufficient to establish display of what appears to be a firearm under Penal Law § 160.15 (4). Here, the evidence presented a question of fact for the jury to determine whether a reasonable person would believe that defendant displayed what appeared to be a firearm.

I.

Defendant was charged with attempted robbery in the first degree (Penal Law §§ 110.00 [attempt], 160.15 [4] [“forcibly steals property and . . . , in the course of the commission of the crime or of immediate flight therefrom, . . . (d)isplays what appears to be a . . . firearm”]). His identity as the perpetrator of the attempted robbery is not disputed. Rather, the question before us is whether the evidence is legally sufficient to establish that defendant’s conduct amounted to displaying what appeared to be a firearm. Defendant seeks reduction of his conviction to attempted robbery in the third degree.

At trial, the teller at a check cashing store testified that defendant demanded money, told her repeatedly that he had a gun, verbally threatened to shoot her, and “showed” her, by means of a hand placed under his sweatshirt, that a gun was concealed there. When defendant was arrested in the vicinity, after abandoning the robbery attempt, no firearm was recovered.

The precise moment at which defendant placed one of his hands under his hooded sweatshirt is not clear from the record. During her testimony, the teller physically demonstrated an action performed by defendant or a pose assumed by him, explaining that defendant “was doing this” and “showed me like this,” and that he thereby conveyed to her that he had a gun underneath his sweatshirt. Asked whether defendant had “reached into his waistband” and “put one of his hands under his hoodie,” she answered both questions in the affirmative. However, the teller was not expressly asked whether defendant placed his hand under his sweatshirt after entering the store.

Defendant moved to dismiss on the ground that the teller’s testimony had been “extremely vague” in regard to his bodily stance or actions. The trial court denied the motion, citing People v Lopez, and reasoning that

“although words alone cannot constitute display-ting] what appears to be a firearm, . . . the words spoken by [defendant] consistent with the physical display ... in terms of his manipulations and his waistband . . . present a question of fact for the jury as to whether a reasonable person could perceive that there is the presence of a gun.”

The trial court instructed the jury on attempted robbery in the first degree as well as the lesser included offense of attempted robbery in the third degree. Defendant did not request a jury instruction on the affirmative defense to robbery in the first degree or an instruction on robbery in the second degree as a lesser included offense, and no such charge was provided to the jury. The jury found defendant guilty as charged.

On appeal, defendant challenged his conviction on legal sufficiency grounds. The Appellate Division affirmed the trial court’s judgment, holding that “[t]he prosecution presented sufficient evidence establishing that the defendant displayed what appeared to be a firearm while attempting to commit a robbery at a check-cashing store” (124 AD3d 918, 918 [2d Dept 2015]).

A Judge of this Court granted defendant leave to appeal (26 NY3d 1043 [2015]). We now affirm.

II.

A person is guilty of robbery in the first degree under Penal Law § 160.15 (4)

“when he [or she] forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he [or she] or another participant in the crime . . .
“[displays what appears to be a . . . firearm; except that in any prosecution under this subdivision, it is an affirmative defense that such . . . firearm was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged.”

The statute, enacted in 1969, “assumes that the object consciously displayed as a firearm was what it appeared to be and places on the defendant the burden of showing that it was not, in which case he could only be convicted of the lesser, second degree offense [Penal Law § 160.10 (2) (b)]” (Lopez, 73 NY2d at 220, citing People v Lockwood, 52 NY2d 790 [1980]; see also Mem in Support, Bill Jacket, L 1969, ch 1012 at 3).

Defendant’s principal argument may be summarized as follows. The victim did not testify with precision as to whether defendant had his hand in his waistband from the beginning of the encounter or placed it there while threatening to shoot her. Therefore, defendant would have us conclude, a rational jury could not have found beyond a reasonable doubt that defendant performed an intentional act of displaying what appeared to be a firearm. Relatedly, defendant suggests that insofar as there is no evidence that he created the appearance of a gun being brandished or pointed toward the victim, the jury could not have reasonably inferred that he displayed what appeared to be a firearm. In a secondary argument, defendant contends that the People failed to prove that he consciously or deliberately displayed what appeared to be a firearm.

III.

The controlling precedent is People v Lopez. Nevertheless, a review of the background predating Lopez is informative.

In People v Lockwood (1980), the defendant held an object to the back of a gas station attendant’s neck and threatened to shoot him. The jury heard testimony that the defendant told the arresting officer that the object was a toothbrush. A toothbrush, and no gun, was found on the defendant’s person when he was arrested. The defendant requested a jury instruction on the affirmative defense to robbery in the first degree— that the firearm displayed “was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged” (Penal Law § 160.15 [4]) — and asked that the lesser included offense of robbery in the second degree be charged. The trial court denied both requests, and submitted to the jury the charge of robbery in the third degree as a lesser included offense.

On appeal from his conviction of robbery in the first degree, defendant Lockwood argued that, under the circumstances of the case, it was reversible error for the trial court to refuse his request to charge the jury regarding the affirmative defense. This Court agreed with the defendant and ordered a new trial, reasoning that “[w]ithout the benefit of the requested charge, the jurors may well have believed that defendant had committed the robbery with a toothbrush, yet also believed that it was their duty to find him guilty of robbery in the first degree because the toothbrush which he displayed appeared to be a pistol” (Lockwood, 52 NY2d at 792).

Although we ruled that Lockwood should have been permitted the requested instruction on the affirmative defense, our decision contained an important observation. As we subsequently noted, this was “that even if defendant’s statement that he committed the robbery by holding a toothbrush in his coat pocket to simulate a gun were accepted as true, he could still be guilty of displaying what appears to be a firearm, and would succeed only in reducing his liability from first degree robbery to second degree” (People v Baskerville, 60 NY2d 374, 381 [1983]).

Later, we emphasized that the precise nature of the object that a defendant displays is not dispositive when analyzing whether a defendant displayed what appeared to be a firearm. In People v Baskerville (1983), the robber wrapped a towel around one of his arms, raised the arm, and pointed it at one of his victims, while threatening to kill her. There was also testimony that a witness saw a black object inside the towel, which she thought was a gun. We set out a two-part test: the People must prove that (1) the defendant “consciously displayed] something that could reasonably be perceived as a firearm,” and (2) it “appeared] to the victim by sight, touch or sound that [the victim was] threatened by a firearm” (Baskerville,, 60 NY2d at 381; accord William C. Donnino, Practice Commentary, McKinney’s Cons Laws of NY, Book 39, Penal Law § 160.00 at 12 [2010 ed]). We concluded that “[w]hen both of these requirements are satisfied, . . . the true nature of the object displayed is, as concerns criminality, irrelevant” (Baskerville, 60 NY2d at 381).

Baskerville did not address whether a defendant may be guilty under the same statute if he or she does not display any object that itself gives the appearance of a gun, but merely covers a hand in such a way that it seems to be holding or reaching for a gun. Our decision in People v Lopez (1989) then clari-fled the issue that had been left unresolved, and held that the “object displayed” could be a hand.

In Lopez, the defendant said “this is a stick up” and demanded that the victim hand over a radio. The victim testified that Lopez simultaneously “put his hand in the right side of his vest ‘as if he had a gun’ ” (Lopez, 73 NY2d at 218). The victim surrendered the radio. A jury found Lopez guilty of robbery in the first degree under Penal Law § 160.15 (4), but the trial court set aside the verdict, concluding that there was no evidence of displaying what appeared to be a firearm because “there was no proof that when the defendant placed his hand inside his vest he ‘made the shape of any object or that the victim saw any object displayed’ ” (Lopez, 73 NY2d at 218). The Appellate Division reversed on the basis that although the display of what appears to be a firearm “requires a display of something that could reasonably be perceived as a firearm, there is no requirement that the object ... be anything other than the defendant’s hand” (People v Lopez, 135 AD2d 443, 443-444 [1st Dept 1987] [internal quotation marks, citations, and brackets omitted]).

The Court of Appeals affirmed. To sustain a conviction for robbery in the first degree (Penal Law § 160.15 [4]), “[t]he People must show that the defendant consciously displayed something that could reasonably be perceived as a firearm, with the intent of forcibly taking property, and that the victim actually perceived the display” {Lopez, 73 NY2d at 220). A mere verbal threat is insufficient. The Court held, however, that “the object displayed need not closely resemble a firearm or bear a distinctive shape,” and may be an object “held inside a coat or otherwise obscured,” such as “[a] towel wrapped around a black object, a toothbrush held in a pocket or even a hand consciously concealed in clothing” {id. [citations omitted and emphasis added]).

The Lopez Court framed the governing standard as follows. A defendant displays what appears to be a firearm within the meaning of Penal Law § 160.15 (4) “if under all the circumstances the defendant’s conduct could reasonably lead the victim to believe that a gun is being used during the robbery” {Lopez, 73 NY2d at 220).

People v Mendez, a companion case to Lopez, was resolved in the same opinion. There, the defendant demanded that the victim hand over everything he had on him, taking a watch, chain, and cash. Meanwhile, another man sat on a nearby stoop, watching the robbery, with his right hand under his shirt. The victim testified that Mendez told the second man not to show or take out the gun. A jury found Mendez guilty of robbery in the first degree, on the theory that a defendant may be held liable for the acts of “another participant” who displays what appears to be a firearm during the robbery (Penal Law § 160.15). The trial court and the Appellate Division rejected Mendez’s argument that the evidence was insufficient to establish that he or the man on the stoop displayed what appeared to be a firearm. This Court, however, agreed with Mendez, holding that the conduct of the man on the stoop was not sufficient to constitute displaying what appeared to be a firearm, because the man did not “take any action” showing that he had a firearm, but “[o]n the contrary, throughout the robbery . . . simply sat on the stoop with his hand under his shirt, literally on the sidelines, immobile, inconspicuous and indifferent” {Lopez, 73 NY2d at 222).

Our decision in Lopez was not unanimous. The partial dissent would have reversed in Lopez as well as in Mendez, and wrote that “the majority has replaced the requirement that there be an actual display of some physical object appearing to be a gun with the far less exacting requirement of some symbolic gesture, other than speech, conveying nothing more than an impression that the robber may have such a physical object” (Lopez, 73 NY2d at 224-225 [Titone, J., dissenting] [citations omitted]). The dissenting Judges would have held “that the ‘display’ element is not satisfied absent proof that ‘something,’ be it a real gun, a toy gun or even a toothbrush or hand concealed in a pocket, has been brandished, pointed or poked at the victim” (id. at 226).

IV.

We reject defendant’s assumption that the timing of the moment at which the defendant places a hand under his clothing is dispositive of the legal sufficiency analysis. A victim may reasonably believe that a gun is being used, on the basis of conduct that makes it appear that the defendant is holding a gun, regardless of whether the defendant makes a movement while addressing the victim or keeps his hand concealed throughout the encounter in a manner and location suggesting the presence of a gun. Whether a defendant displays what appears to be a firearm does not depend on when precisely the defendant begins the display, provided it occurs “in the course of the commission of the crime or of immediate flight therefrom” (Penal Law § 160.15 [4]).

Our precedents are not to the contrary. In particular, Mendez, the companion case to Lopez, does not stand for the proposition that a person who, throughout an encounter with a victim, leaves a hand concealed under clothing cannot be guilty of robbery in the first degree. The factual circumstances of Mendez were unique in that the second man did not approach the victim or signal involvement in the crime by any words or action.

It is true that in describing the grounds of legal sufficiency in Baskerville we observed that

“[t]he evidence . . . that the towel wrapped around the robber’s arm concealed a black object that appeared to one of the persons threatened to be a gun, and that the robber raised his arm toward a person and threatened to kill the person his arm was pointed at, was clearly sufficient to establish that the robber displayed what appeared to be a firearm” (Baskerville, 60 NY2d at 381-382).

However, Baskerville does not require, in every case, that the defendant perform an active movement perceived by the victim that makes it appear that he has a gun. Neither Baskerville nor Lopez addresses the scenario in which a defendant who demands money keeps a hand concealed in clothing throughout the encounter, and no decision of this Court on point has been brought to our attention.

A related argument offered by defendant is that there was no testimony that he used his hand to carry out a movement or to create a bulge in his clothing to give the appearance that he was pointing a gun at the teller or brandishing a firearm. The contention, drawing on the Lopez dissent, is that a defendant must make a pointing or waving movement or create some effect with his hand, other than purposefully placing it inside his clothing, in order to display what appears to be a firearm. In other words, defendant appears to argue that, for a hand to be sufficient, the hand has to be used to simulate a gun, rather than to simulate a hand holding a gun.

This argument, however, is inconsistent with Lopez, which upheld the conviction of a defendant who simply placed his hand in one side of his vest as if he had a firearm (see Lopez, 73 NY2d at 221-222). Moreover, the Lopez Court emphasized that “the object displayed need not closely resemble a firearm or bear a distinctive shape” (Lopez, 73 NY2d at 220). The requirement that a hand be manipulated to look like a gun is inconsistent with our acceptance in Lopez that the thing displayed need not have a gun-like shape.

Notably, defendant does not ask us to overrule Lopez. Nor would we. A rule such as the one outlined in the Lopez dissent would have inadequate grounding in policy: there is little reason to consider a robbery a graver crime if the victim formed the impression that the perpetrator was pointing a gun, as opposed to the impression that the perpetrator was reaching for a gun. To the extent a court might consider pretending to point a gun a more serious offense, such concerns are outweighed by the impractical nature of a law that would often require testimony as to the exact size, shape, and orientation of a bulge in a defendant’s vest or shirt. By contrast, Lopez offers a clear rule that has been followed consistently by the courts of this state in numerous decisions for nearly 30 years (see e.g. People v Williams, 100 AD3d 1444, 1445 [4th Dept 2012], lv denied 20 NY3d 1015 [2013]; People v Welsh, 80 AD3d 456, 456-458 [1st Dept 2011], lv denied 16 NY3d 864 [2011]; People v Mitchell, 59 AD3d 739, 740 [2d Dept 2009], lv denied 12 NY3d 918 [2009]; People v Middleton, 247 AD2d 713, 713 [3d Dept 1998], lv denied 92 NY2d 856 [1998]; People v Avilla, 234 AD2d 45, 45 [1st Dept 1996]; People v Haney, 162 AD2d 613, 613-614 [2d Dept 1990], lv denied 76 NY2d 940 [1990]).

Defendant’s secondary argument concerning conscious intent is not persuasive. Certainly, the People were obliged to prove that defendant “conspicuously and consciously conveyed the impression” that he had a firearm (Lopez, 73 NY2d at 222). Here, the jury could have inferred from the testimony that defendant held one of his hands under his sweatshirt, while telling his victim that he had a gun, that he consciously intended to convey that he had a gun. Viewing the evidence in the light most favorable to the People, the jury could rationally have inferred, albeit circumstantially, that the hand placement was deliberate, and designed to back up the verbal threat with the simulated action of holding or reaching for a gun.

V.

The dissent argues that the legislature, in enacting the statute, was entirely concerned with “the evidentiary difficulty of proving that an actual gun was loaded and operable” (dissenting op at 106). Significantly, the dissent does not call for Lopez to be overruled. This is appropriate because Lopez interpreted a statute, and this Court rarely overrules its own interpretations of statutes, particularly where the defendant has not asked us to do so. However, the dissent’s conclusion on legal sufficiency (see dissenting op at 111-112) would require this Court to overturn Lopez.

Finally, we note that the affirmative defense to robbery in the first degree is equally as available to an unarmed robber who creates the impression of firearm possession as it is to a robber who possesses an unloaded or inoperable firearm (see Lockwood, 52 NY2d at 792). “[Rjobbery in the second degree is the appropriate offense when, in fact, the defendant has simply used his hand to create the impression he is armed with a gun. However, the burden is on the defendant to prove this as an affirmative defense at trial” {Lopez, 73 NY2d at 222 n 2 [citations omitted]). Defendant could have sought an instruction on robbery in the second degree but failed to do so.

Defendant’s challenge to the legal sufficiency of the evidence against him fails. The jury could have found beyond a reasonable doubt that, under all the circumstances, defendant’s conduct could reasonably have led the victim to believe that a gun was being used during the robbery (see Lopez, 73 NY2d at 220).

Accordingly, the order of the Appellate Division should be affirmed.

Abdus-Salaam, J.

(concurring). I concur in the result on constraint of People v Lopez (73 NY2d 214 [1989]). I note, as do the majority and the dissent, that defendant has not asked this Court to overrule Lopez.

Wilson, J.

(dissenting). A homeless man walks into a check-cashing store. This sounds like the start of a bad joke, but instead is filled with pathos. Charles Smith, with one hand covered by the bottom of his hoodie, demanded money, eventually threatening to shoot the cashier (who was behind bulletproof glass). He challenges his first-degree attempted robbery conviction, on the ground that he did nothing to “[d]isplay[ ] what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm” (Penal Law § 160.15 [4]). His conviction for first-degree attempted robbery resulted in the imposition of a 16-years-to-life prison sentence. That is not what the legislature or Governor intended. As the majority notes, Mr. Smith does not ask us to reconsider or modify any of our prior decisions interpreting Penal Law § 160.15. Instead, he seeks reversal on a ground not controlled by our prior decisions: that an unarmed person who “makes no movements” of his or her concealed hand while threatening the presence of a gun cannot be convicted for attempted robbery in the first degree. Because neither People v Lopez (73 NY2d 214 [1989]) nor any prior precedent compels affirmance, I would not extend our prior missteps by affirming here.

I.

Over the years, our Court has erroneously broadened the scope of the aggravating factor, “[d]isplays what appears to be a . . . firearm,” without regard for the legislature’s actual intent in enacting that language. Neither the legislature nor Governor Rockefeller intended that a defendant, who displayed no object whatsoever during the commission of the crime, could be convicted of attempted robbery in the first degree.

In construing any statute, we must start with its plain meaning and then, if unclear, examine its legislative history (see Riley v County of Broome, 95 NY2d 455, 463-464 [2000]; Patrolmen’s Benevolent Assn, of City of N.Y. v City of New York, 41 NY2d 205, 208 [1976]). Here, the ordinary meaning of “display” is to show or make something evident (see Merriam-Webster Online Dictionary, display [https://www.merriam-webster.com/ dictionary/display] [“to put or spread before the view,” “to make evident,” or “to exhibit ostentatiously”]; see also Oxford English Dictionary, display [https://en.oxforddictionaries.com/definition/ display] [“(to) (p)ut (something) in a prominent place in order that it may readily be seen”]). Stretching “[d]isplay[ ] what appears to be a . . . firearm” to a situation in which nothing is shown or made evident requires some proof that the legislature intended that meaning, because it is unnatural. In Mr. Smith’s case, even if he had possessed a firearm hidden under his hoodie, we would have referred to it as “concealed,” not “displayed.” To reach the conclusion that the legislature meant what, in common parlance, would be the opposite of what it wrote (i.e., “displayed” included “concealed”), we would need legislative history powerfully demonstrating that intent. The legislative history is completely to the contrary.

Prior to 1969, an aggravated robbery charge — armed with a gun — required the People to prove beyond a reasonable doubt that a gun. openly displayed during the crime was loaded and operable (see People v Ahmed, 27 AD2d 729, 729 [1st Dept 1967]; People v Gordon, 19 AD2d 828, 829 [2d Dept 1963]). That task proved to be immensely difficult if the defendant never fired a shot or was not quickly apprehended in possession of (or otherwise tied to) the still-loaded firearm. Accordingly, in 1969, the legislature amended New York’s robbery statute to address that specific evidentiary problem by adding “[displays what appears to be a . . . firearm” as an aggravating factor for both first- and second-degree robbery (Penal Law §§ 160.10 [2] [b]; 160.15 [4]; see L 1969, ch 1012). Thus, “when a participant in the [robbery] exhibits an object appearing to be a firearm, then a presumption — rebuttable, of course— exists that such participant [in the robbery] was armed with a deadly weapon” (Sponsor’s Mem, Bill Jacket, L 1969, ch 1012 at 3, 1969 NY Legis Ann at 39). For first-degree robbery, the amendment also made available an affirmative defense that the firearm displayed was either unloaded or incapable of being fired (see Governor’s Approval Mem, Bill Jacket, L 1969, ch 1012 at 17, 1969 NY Legis Ann at 567).

The justification for the legislation, contained in the bill jacket, stated: “The need for the presumption created by this bill is a practical one” — to help solve the problem involving situations where “proof that the object displayed was, in fact, a loaded weapon, is well-nigh impossible to obtain” (Sponsor’s Mem, Bill Jacket, L 1969, ch 1012 at 3, 1969 NY Legis Ann at 39-40). Likewise, the Governor’s memorandum accompanying the legislation described the bill as one “to increase the penalties for robbery . . . where firearms are displayed” (Governor’s Approval Mem, Bill Jacket, L 1969, ch 1012 at 17, 1969 NY Legis Ann at 567). Governor Rockefeller stated: “Specifically, the bill provides that a firearm displayed during the commission of . . .a robbery is presumed to be loaded and would constitute . . . Robbery in the First Degree” (id. [emphasis added]). He also noted that “[defendants charged with such acts would be permitted to prove, as an affirmative defense, that the firearm exhibited was either unloaded or incapable of being fired” in which case the crime would be reduced to second-degree robbery (id. [emphasis added]). It is important to note, as I discuss later, that neither the legislature nor the Governor provided any indication that the enhancements provided by the legislation were out of any concern for heightened fear by the victim — that rationale was belatedly created by our and other courts.

Additionally, both the New York State Temporary Commission on Revision of the Penal Law and Criminal Code and the Crime Control Council, writing in support of the bill, consistently described the legislation as addressing the evidentiary problem described above (see Letter from NY St Temp Commn on Rev of Penal Law and Crim Code, Apr. 3, 1969, Bill Jacket, L 1969, ch 1012 at 5-6 [“(w)e consider these amendments to be a reasonable and equitable solution to a very serious law enforcement problem” involving the “impossible (task of) proving) that (the defendant) was ‘armed’ when he (or she) committed the crime — even if (the defendant) has a loaded gun in his (or her) possession when apprehended”]; Mem of Chairman of Crime Control Council, Bill Jacket, L 1969, ch 1012 at 9 [“(t)he bill . . . deals with the problem of proof which occurs when a . . . robber displays what appears to be a firearm” but does not discharge the weapon or is not apprehended immediately afterwards so that “the prosecution is generally unable to prove that the defendant was in possession of a ‘deadly weapon,’ an element of robbery (in the) first degree”]).

Likewise, the State Police also described the legislation’s purpose as “neatly do[ing] away with the ancient dilemma concerning loaded vs. unloaded guns” (Mem of NY St Police, Bill Jacket, L 1969, ch 1012 at 11). The Honorable Albert Rosenblatt, then Dutchess County District Attorney and later a Judge of this Court, wrote to explain that the legislation “deals with the operability of a gun (or whether it was loaded) in the context of a robbery situation” (Letter from Albert M. Rosenblatt, District Attorney of Dutchess County, Mar. 21, 1969, Bill Jacket, L 1969, ch 1012 at 15). None of those statements contains any suggestion that any part of the legislative intent was to enhance penalties based on increased fear by the victim.

The difference in the statutory language for first- and second-degree robbery in the 1969 legislation further underscores the legislature’s intent that the display of something that was or looked very much like a real firearm was essential to conviction under either prong of the statute. Both section 160.10 (robbery in the second degree) and 160.15 (robbery in the first degree) contain the exact same operative language: “A person is guilty of robbery in the [first or second] degree when he [or she] forcibly steals property and when . . . [he or she] [d]isplays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm” (Penal Law §§ 160.10 [2] [b]; 160.15 [4]). However, section 160.15 (first degree) allows the defendant to prove, as “an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged,” in which case the conviction would be reduced to second-degree robbery.

The statutory language makes sense only in the context of the legislative history: that the problem addressed by the statute was the evidentiary difficulty of proving that an actual gun was loaded and operable — not anything having to do with enhanced fear of the victim. Thus, the legislature modified the definition of first-degree robbery to address situations where something that was or looked very much like a real weapon was displayed — not because of the fear that might create, but to address a problem of proof where a real firearm was very likely used. It would follow, then, that prosecutors would charge second-degree robbery where, for example, the defendant was apprehended during commission of the robbery and the firearm was unloaded, or was a toy gun. Without the guidance of the legislative history, the amendment could be interpreted, and has now been by this Court, to allow unarmed persons with a hand in a pocket to be charged with the same crime as a robber who fired shots.

Nevertheless, despite the clear intended purpose of the statute as amended, our Court has, over the years, deviated from the legislative intent without examining it in any detail.

II.

I begin with People v Lockwood (52 NY2d 790 [1980]), which the majority discusses, and whose holding is consistent with the statutory language and legislative intent. Lockwood’s holding does not concern the “[d]isplays what appears to be a . . . firearm” language, but rather the affirmative defense provided by the legislation.

The sole issue raised on appeal to this Court in Lockwood was whether Supreme Court erred in failing to instruct the jury on the affirmative defense contained in section 160.15 (see brief and appendix for defendant-appellant at 2 in People v Lockwood, 52 NY2d 790 [1980], available in New York Court of Appeals Cases and Briefs, vol 398 [1980]). Mr. Lockwood did not raise the issue of whether the use of a toothbrush out of the vision of the victim (thrust into the back of his neck) constituted “[d]isplay[ ] [of] what appears to be a . . . firearm.” In fact, as part of his defense strategy, Mr. Lockwood’s counsel conceded that Mr. Lockwood “had used the toothbrush in a manner intended to make the toothbrush appear to be a pistol” (id. at 16-17). Thus, Lockwood’s holding is just that a defendant who requests and is refused an instruction on the affirmative defense that the “weapon” displayed was really a toothbrush (and hence “incapable of being fired”) is entitled to that instruction. It contains no holding on whether a toothbrush (or concealed hand) sufficiently appears to be a firearm.

Both the majority here and prior decisions of our Court, beginning with People v Baskerville (60 NY2d 374 [1983]), misinterpret Lockwood’s dicta and apply it as if it were a holding. In dicta, we stated: “If, of course, a defendant successfully proves his affirmative defense, he may still be found guilty of robbery in the second degree, which requires only that the defendant forcibly steal property while displaying what appears to be a firearm” (Lockwood, 52 NY2d at 792 n). That dicta referred to “a defendant” generally — not Mr. Lockwood, and even if read to refer specifically to Mr. Lockwood, it arises in a context in which Mr. Lockwood did not argue that his conduct constituted no more than robbery in the third degree: he sought and obtained reversal because of the refusal to charge on his affirmative defense.

Baskerville is where we made our first detour from the legislature’s intent, albeit in dicta. Baskerville’s holding — that a black metal object wrapped in a towel, which the robber raised and pointed at a victim accompanied by a threat to kill her could constitute the “display of what appears to be a firearm” (60 NY2d at 380) — concerns merely the sufficiency of facts showing that the brandished item was something that appeared to be a firearm. However, Baskerville included a rationale never advanced by the legislature, one that later steered our Court astray in Lopez: the idea that the enhancement for first-degree robbery (or attempted robbery) was related to increased fear by the victim. In Baskerville we cited two “apparent justification[s]” for the 1969 legislation: (1) “the difficulty of proving when no shot was fired that what appeared to be a weapon was in fact a weapon” and (2) “the effect upon the victim put in fear of his or her life by the display of what appeared to be a weapon” (60 NY2d at 381). Although we cited authority for the first justification, we cited nothing at all for the second.

Here, the majority points to an observation made in Basker-ville concerning Lockwood — namely, that even if Mr. Lockwood had used a toothbrush to rob his victim, “he could still be guilty of displaying what appears to be a firearm, and would succeed only in reducing his liability from first degree robbery to second degree” (majority op at 96). That observation merely recognized that, because Mr. Lockwood challenged only the failure to give an instruction on his affirmative defense, his success in proving his affirmative defense would have reduced his conviction from first-degree to second. It does not constitute a holding that use of a toothbrush (or other item not remotely resembling a firearm) would be sufficient to establish second-degree robbery.

Baskerville compounded the dicta in Lockwood by adding dicta concerning facts not present in Baskerville and rooted in the fictional legislative concern for enhanced fear. Thus, based on the erroneous conclusion that part of the legislature’s purpose was to punish more severely threats that placed the victim in greater fear for his or her life, and the misreading of the dicta in Lockwood described above, we wrote: “[The] display of anything that appears to be [a firearm], though held inside a coat or otherwise obscured, is covered by sections 160.10 [second-degree robbery] and 160.15 [first-degree robbery]. . . . [T]he true nature of the object displayed is, as concerns criminality, irrelevant” (60 NY2d at 381). Of course, Baskerville did not involve anything concealed under a coat, and offered no support for the proposition that the legislature intended that someone committing a robbery with a toothbrush could be prosecuted for robbery in the first or second degree, however fearful the victim might have been.

Not until Lopez, however, did we reach a holding (rather than dicta) incompatible with the statute: that although “mere statements that a robber is armed with a gun” are insufficient to establish robbery in the first or second degree (73 NY2d at 221), Mr. Lopez’s act of moving his hand inside his vest constituted “[d]isplay[ ] [of] what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm.” In Lopez, we asserted that a “primary purpose [ ]” of the statute “recognizes that the additional fear suffered by a robbery victim confronted by what appears to be a firearm aggravates the nature of the offense and warrants additional punishment” (id. at 219-220), citing only Baskerville, which, as discussed above, cited nothing, and is not what the legislature, Governor, and other bodies responsible for the legislation said at the time.

Indeed, with particular reference to the interpretation of the statutory “display” requirement as reaching the conduct of Mr. Lopez, who displayed no object at all, Lopez expressly relied on the proposition that “the display element focuses on the fearful impression made on the victim” (id. at 220). Based on that fictional legislative intent, we wrote:

“In light of the purpose of the statutory scheme, the broad wording of the display element, and the obligation to construe the Penal Law fairly to carry out the legislative intent [,] . . . ‘the display of anything that appears to be such [i.e., a firearm], though held inside a coat or otherwise obscured’ ... or even a hand consciously concealed in clothing” constitutes first-degree robbery (id., quoting Baskerville, 60 NY2d at 381).

In People v Mendez, decided with Lopez, we either decided that some movement of the apparent weapon was required to meet the display requirement, or did not resolve that issue. In Mendez, the defendant was standing near a stoop where another man was sitting, with “his . . . hand under his shirt” (id. at 219). As the victim passed by, the defendant assaulted him, robbed him of a watch, chain, and $80, and told the man sitting on the stoop “don’t show him the gun” or “[don’t] take out the gun” (id.). The man on the stoop “watch[ed] the robbery with his right hand under his shirt,” after which the defendant and seated man both fled (id.). We held that the defendant’s first-degree robbery conviction had to be reduced to third-degree robbery, because “the man on the stoop did not actively participate in the robbery, nor did he display a weapon or take any action indicating that he had one” (id. at 222). It is unclear whether our holding rested on the lack of evidence that the man on the stoop was involved in the robbery, or that the lack of a movement by the man on the stoop meant that nothing had been “displayed.” Thus, Mendez either has decided that some movement is necessary to meet the “display” requirement (which would require us to reduce Mr. Smith’s conviction to third-degree attempted robbery), or else did not reach that issue, in which case it is now presented by this appeal.

III.

I turn, then, to the record evidence in this case. On the morning of November 1, 2011, Mr. Smith, a homeless 41 year old, entered a check-cashing store in Queens, where Ms. Almeida was working. She was the only employee there, and was separated from Mr. Smith by bulletproof glass. Ms. Almeida, the only witness to Mr. Smith’s conduct, testified that he entered the store, asked for money, stayed approximately 10 minutes, and then said he had a gun. Ms. Almeida pressed a silent alarm; Mr. Smith walked out of the store about five minutes later and was apprehended several minutes later, walking down the street about eight blocks away.

Ms. Almeida’s trial testimony does not establish that Mr. Smith made any sort of movement of his hoodie-covered hand the entire time he was in the store. The prosecutor asked Ms. Almeida a series of questions concerning “what [Mr. Smith was] doing, if anything, with his hands.” She repeatedly described the defendant as “holding” his hand under the bottom of his hoodie, which the trial judge described as “under the shirt at the waist.” She further testified, “I don’t know whether he was holding or not. I was not able to see anything . . . .”

On cross-examination, Ms. Almeida repeated several times her description of the defendant as “holding” his hand under his hoodie “all the time” he was in the store. Defense counsel specifically asked, “Would it be fair to say he reached under his hoodie?” Ms. Almeida decidedly responded, “No. He was like this, like (indicating) . . . .” Defense counsel asked again, “So he lifted his hoodie up?” Ms. Almeida responded, “The hoodie was like this (indicating). . . . Covering his hand.”

The People interpret the record evidence as demonstrating no movement of Mr. Smith’s concealed hand while inside the check-cashing store (see e.g. brief for respondent at 4-6 [“all while holding his hand under his shirt at his waist”; “threats made while he had his hand deliberately and strategically placed under his sweatshirt at his waist”; “he held it under his shirt, at his waist”; “defendant’s own conduct in holding his hand under his shirt at his waistband”]; 12 [“(Ms.) Almeida testified that defendant ‘was holding something’ under his shirt at his waist and she demonstrated for the jury how he held his hand under his hooded sweatshirt”]; 14 [“defendant held his hand in his sweatshirt at the waist”]).

The majority concedes that it is unclear whether Mr. Smith placed his hand under his sweatshirt before or after entering the store. In any event, Ms. Almeida repeatedly stated that Mr. Smith held his hand under his sweatshirt and, when specifically asked if he reached under his hoodie, she responded, “No.” When Mr. Smith was arrested a few minutes after leaving the store, the officers frisked Mr. Smith and found “[n]othing.”

Nothing in the record suggests that Mr. Smith possessed any item whatsoever, let alone an object that appeared to be a firearm. The only witness to the crime testified that she did not see a gun — or, for that matter, anything at all. Accordingly, the evidence is legally insufficient for a jury to reasonably conclude that Mr. Smith displayed what appeared to be a firearm.

It is no answer that Mr. Smith might have been able to avoid a conviction for first-degree attempted robbery by seeking an instruction on the affirmative defense, thereby reducing his conviction to second-degree attempted robbery, for two reasons. First, and most fundamentally, the State bears the burden to prove every element of the offense beyond a reasonable doubt, and “[d]isplay[ing] what appears to be” a firearm is an element of both first- and second-degree robbery. If, as seems clear, the legislature did not intend that the verbal threat of a firearm coupled with a concealed hand would count as “display,” the State has not met its burden. Shifting that burden to a defendant, so that she or he must disprove an element of the offense, is cold comfort. Second, because “display” is an element of both first- and second-degree attempted robbery, absent a display, the proper offense is third-degree attempted robbery, not second.

There may not be much of a principled distinction between someone who moves a hand into his or her pocket while announcing the possession of a firearm and someone whose concealed hand is motionless while he or she claims to have a gun. But there is also no principled distinction between someone who threatens to shoot when his or her hands are visible and not moving towards anything (which cannot constitute first- or second-degree robbery), and someone who moves his or her hand towards a pocket while threatening to shoot (which Lopez erroneously holds is first-degree robbery).

In any event, the legislature clearly intended that neither of those would constitute first-degree robbery. Affirmance here is not compelled by stare decisis, and adherence to the clear intent of the legislature and Governor is more important than pursuing our mistaken course to its end. I therefore respectfully dissent.

Chief Judge DiFiore and Judges Rivera, Stein and Garcia concur; Judge Abdus-Salaam concurs in result in a separate concurring opinion; Judge Wilson dissents in an opinion.

Order affirmed.

      . Notwithstanding the dissent’s argument based on the legislative history, we have long recognized that the victim’s fear of harm is significant in cases involving the use or perceived threat of a firearm (see People v Hedgeman, 70 NY2d 533, 541 [1987] [describing the aggravating factors as “reflect(ing) a concern for the added element of physical harm, danger, and perceived threat of additional violence to the victims of the robbery”]).

      . The dissent argues that our interpretation of Penal Law § 160.15 does not comport with the plain meaning of the word “display” and that if defendant had possessed a fireárm hidden under his sweatshirt it would naturally be described as “concealed” rather than “displayed” (see dissenting op at 103). This objection conflates displaying what appears to be a firearm with displaying a firearm. Even if defendant was attempting to conceal the true nature of the item beneath his sweatshirt, i.e., his hand, he was in no way concealing from the teller that he had something under his sweatshirt. On the contrary, he can fairly be characterized as displaying the appearance of a firearm.

      . Contrary to the dissent, defendant is seeking reversal on a basis that we hold to be “controlled by our prior decisions” (dissenting op at 102). While defendant seeks to distinguish Lopez, we hold that Lopez is not distinguishable. However, defendant does not seek to overturn that decision.

      . The dissent suggests that if a defendant had no firearm-like object other than his hand, then “the proper offense is third-degree attempted robbery” (dissenting op at 112). This would follow only on the dissent’s theory of the statute. Under Lopez, however, the appropriate offense is robbery in the second degree if the People prove that defendant displayed what appeared to be a firearm but defendant is able to prove that he had no firearm (see Lopez, 73 NY2d at 219, 220, 222 n 2). Robbery in the third degree (Penal Law § 160.05) is the proper offense only when a defendant forcibly steals property and neither displaying the appearance of a firearm nor any of the other aggravating factors is present (see Lopez, 73 NY2d at 219).

      . Had Mr. Smith instead been convicted of attempted robbery in the third degree, he would not have been classified as a persistent violent felony offender (see Penal Law §§ 70.02 [1]; 70.08). Attempted third-degree robbery is a class E felony (see Penal Law §§ 110.05, 160.05), for which the maximum sentence “shall not exceed four years” (Penal Law § 70.00 [2] [e]).

      . The New York State Temporary Commission on Revision of the Penal Law and Criminal Code (the Bartlett Commission), “an arm of the State Legislature” (People v Petre, 151 Misc 2d 543, 546-547 [Sup Ct, Queens County 1991]), was created in 1961 upon the recommendation of Governor Rockefeller and tasked with “revising] the penal law and determin[ing] the proper role and function of sentencing” (Joshua Logan Pennel, Comment, The End of Indeterminate Sentencing in New York: The Death and Rebirth of Rehabilitation, 58 Buff L Rev 507, 512-513 [2010]). “The legislature gave the Bartlett Commission carte blanche to develop both a penal law and a complimentary sentencing structure” {id. at 513). The Crime Control Council was created in 1967 to combat a “steady increase in crime rate . . . through improved coordination and cooperation of all the state agencies concerned with law enforcement, criminal justice and post-adjudicatory treatment of offenders” (L 1967, ch 167, § 1). It was “made up of the heads of the state departments and agencies concerned with the control of crime” and tasked with the duty of “[a]dvis[ing] and assisting] the governor” in various ways in matters relating to the control of crime {id.).

      . The only support for the proposition that the legislation in any way related to increased fear by the victim, if a weapon were displayed, came from the State Administrator of the Judicial Conference of the State of New York, who sent a letter suggesting that the bill would “accomplish two good things” by (1) recognizing “the additional element of fright caused by the perpetrator’s pretended possession of a firearm” and (2) “assisting] in the proof of a case against a defendant who displayed an object during the perpetration of a crime” (Letter from St Administrator of Jud Conf of St of NY, Apr. 10, 1969, Bill Jacket, L 1969, ch 1012 at 12-13). His suggestion has no bearing on the legislature’s or Governor’s intent; moreover, the State Administrator expressly stated that “[t]his bill. . . ha[d] not been considered by the Judicial Conference” (id. at 12).

      . Lockwood is precisely the kind of case the legislature meant to reach through the 1969 amendments. After Mr. Lockwood pressed something into the neck and side of his victim, threatening to shoot him, two officers arrived while Mr. Lockwood was rifling through the gas station’s cash register (see brief for respondent at 3 in People v Lockwood, 52 NY2d 790 [1980], available in New York Court of Appeals Cases and Briefs, vol 398 [1980]). An attendant at the gas station testified that he was certain Mr. Lockwood had pressed a gun into the other attendant’s neck; one officer testified that Mr. Lockwood was armed with what appeared to be a “silver handgun”; the other officer testified that Mr. Lockwood was lifting his right hand and pointing a silver or chrome object with a four-inch barrel at him, which appeared to be a handgun (id. at 4). Mr. Lockwood fled in his car and eluded the officers on the scene, but was caught by officers in New Jersey about half an hour later, with no gun in his possession (see id.).

      . Lopez was a 4-3 decision. The dissent adopted the same erroneous conclusion, relying solely on Baskerville, that part of the legislature’s intent in enacting the display requirement was “to increase the penalty for putting the victim in fear for his or her life” {Lopez, 73 NY2d at 223 [Titone, J., dissenting]). Consequently, it is not the case that the majority in Lopez considered and rejected the position expressed in my dissent. Rather, the incongruities noted by the dissent provide further evidence that, quite apart from what the legislature and Governor said they meant, they could not have meant to convict an unarmed person of robbery in the first degree.

      . Immediately after that, defense counsel asked, “Would it be his right hand or left hand; he put one of his hands under his hoodie,” to which Ms. Almeida responded, “Exactly.” In context, it is not possible to read “he put” as describing motion observed by her; Ms. Almeida had specifically and repeatedly described Mr. Smith as “holding,” and expressly denied that Mr. Smith had reached under or lifted up his hoodie. It is clear the question focused on Ms. Almeida’s inability to remember which hand Mr. Smith had under his hoodie, not whether she observed him putting it anywhere or moving it.

      . Because we have deviated quite a way from the legislature’s intent, “the [l]egislature’s competency to correct the misinterpretation is readily at hand” (People v Hobson, 39 NY2d 479, 489 [1976] [internal quotation marks omitted]) to restore its original purpose that demonstrably unarmed robbers are treated differently from those with firearms.