People v. Smith (2025): Defendant’s Burden to Prove a Displayed BB Gun Was Not “Readily Capable” of Causing Serious Injury in First‑Degree Robbery

I. Introduction

In People v. Smith, 2025 NY Slip Op 07082 (Dec. 18, 2025), the New York Court of Appeals addressed a recurring problem in robbery prosecutions involving non‑firearm weapons that look like guns—particularly BB guns, air pistols, and similar devices.

The core question was whether a defendant who admittedly used a BB gun during a robbery was entitled to an affirmative defense jury instruction under Penal Law § 160.15(4), which, if proven, would reduce first-degree robbery (a class B violent felony) to second-degree robbery (a class C violent felony).

The case pits:

• The majority (Judge Troutman) – emphasizing the plain text of Penal Law § 160.15(4), the defendant’s burden of proof on affirmative defenses, and the inadmissibility of jury “speculation” about a weapon’s capabilities; against
• The dissent (Chief Judge Wilson, joined by Judges Singas and Halligan) – emphasizing the structure and purpose of the robbery statute as a whole, the legislative history, a long line of Appellate Division precedent, and the rule of lenity.

Although the Appellate Division had affirmed Smith’s first‑degree robbery conviction on the theory that BB guns are per se “readily capable of causing serious physical injury,” the Court of Appeals rejects that categorical rule. Yet it still holds that Smith was not entitled to the affirmative defense charge because he presented no evidence concerning the capabilities of his particular BB gun. The dissent would instead reduce his conviction to second-degree robbery as a matter of law.

The decision thus establishes two important statewide rules:

1. A BB gun is not, as a matter of law, always or never “readily capable of producing death or other serious physical injury”; that is a fact question case by case.
2. A defendant is entitled to an affirmative defense charge under § 160.15(4) only if there is some non‑speculative evidence that the particular object used was not a loaded, readily capable weapon; mere argument or assumption is insufficient.

II. Factual and Procedural Background

A. Facts of the Robbery

In 2017, a masked man entered a Rochester hair salon and demanded money. Witnesses testified that:

• He pointed a black object at an employee’s head while she removed cash from a safe.
• Three witnesses thought the object appeared to be a gun; one customer with a concealed carry permit testified he could not tell if it was a “play gun” or a “Glock nine millimeter.”

The man fled with cash. Police developed Smith as a suspect based on a Crime Stoppers tip from an acquaintance who:

• Reported that Smith had confessed to the robbery; and
• Had previously purchased a BB gun for Smith’s birthday.

Executing a search warrant at Smith’s home, police recovered:

• A black CO2 air pistol (BB gun), and
• A homemade black mask.

Upon arrest, Smith initially told officers they had no evidence. When told of the search warrant, he responded: “I’m f---ed now. They probably found the BB gun in my house.”

B. Charges and Trial Posture

Smith was charged with first-degree robbery under Penal Law § 160.15(4), which applies when, in the course of a forcible stealing, a defendant:

“displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm.”

At trial:

• The prosecution’s theory was that Smith displayed the BB gun, which looked like a firearm, to commit the robbery.
• The BB gun recovered at his home and the mask were introduced as evidence linking him to the crime.

C. The Requested Affirmative Defense Instruction

Penal Law § 160.15(4) contains a specific affirmative defense:

“it is an affirmative defense that the [object displayed] was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged.”

At the charge conference Smith requested that the jury be instructed on this affirmative defense, arguing roughly:

• He used a BB gun, and
• A BB gun is not “a weapon that can actually shoot you dead.”

The trial court:

• Noted that a CO₂ BB pistol “is a little different,”
• Observed that either side was “speculating” about its capabilities; and
• Denied the requested affirmative defense charge.

The jury convicted Smith of first-degree robbery under § 160.15(4).

D. Appellate Division Decision

The Fourth Department affirmed (228 AD3d 1324 [4th Dept 2024]), relying on its prior decision in People v. Akinlawon, 158 AD3d 1245 (4th Dept 2018), which, in turn, followed First and Third Department authority:

• People v. Richard, 30 AD3d 750 (3d Dept 2006), and
• People v. Padua, 297 AD2d 536 (1st Dept 2002).

In Akinlawon, the Fourth Department had held, as a matter of law, that:

“a BB gun is readily capable of causing serious physical injury,” and therefore the affirmative defense applies only when the defendant proves the BB gun was unloaded or inoperable.

Smith appealed to the Court of Appeals, contending that he was wrongly denied the affirmative defense charge and that the statutory structure did not permit a first-degree conviction under § 160.15(4) when the weapon is known to be a BB gun.

III. Summary of the Court’s Holdings

A. Majority (Judge Troutman)

The Court of Appeals affirmed the conviction, but rejected the Appellate Division’s categorical approach. The majority holds:

1. BB guns are capable of inflicting “serious physical injury,” including protracted vision impairment or blinding. They are not categorically harmless, and may sometimes qualify as deadly weapons or dangerous instruments. However, whether a particular BB gun is “readily capable” of causing serious physical injury is a question of fact, not of law.
2. Because the affirmative defense in § 160.15(4) is an affirmative defense as defined by Penal Law § 25.00(2), the defendant carries the burden of production and persuasion. A trial court must charge that defense only when, viewing the evidence most favorably to the defendant, there is sufficient evidence for the jury to find by a preponderance that the displayed object was not a loaded, readily capable weapon.
3. In this case, although Smith made a prima facie showing that:
   • He used a BB gun in the robbery, and
   • That BB gun was likely the one found in his home,
   he presented no evidence at all concerning the capabilities (power, muzzle velocity, injury potential) of that specific BB gun. Under People v. Cotarelo, 71 NY2d 941 (1988), the jury would have had to speculate about its capabilities. Therefore the trial court properly declined to give the affirmative defense instruction.
4. The dissent’s reading—that § 160.15(4) applies only when the object is unrecovered or unknown—has no basis in the statutory text and is incompatible with People v. Lopez, 73 NY2d 214 (1989). The statutory scheme simply makes first-degree robbery harsher than second-degree robbery when the defendant displays what appears to be a firearm, with the possibility of reduction via the affirmative defense.

B. Dissent (Chief Judge Wilson)

Chief Judge Wilson would:

• Reduce the conviction to second-degree robbery and remit for resentencing.

He reasons that:

1. When it is undisputed that the object used was a BB gun (not a firearm) and there is no proof that it was a deadly weapon or dangerous instrument, the defendant cannot be convicted of first-degree robbery under § 160.15(4). Instead:
   • He may be convicted of second-degree robbery under § 160.10(2)(b), or
   • First degree only under § 160.15(1)–(3) if the People prove serious physical injury, a deadly weapon, or a dangerous instrument.
2. Subdivision (4) of § 160.15 must be read, in light of the entire robbery scheme and the legislative history, as addressing situations in which the object is not recovered or identifiable. It creates a presumption that what appears to be a firearm is a firearm, subject to the defendant’s affirmative defense. It was not meant to shift the People’s burden of proving dangerousness when everyone knows the weapon is a non‑firearm.
3. The majority’s reading:
   • Allows the People to bypass their burdens under § 160.15(2) and (3) by simply charging under (4) every time a BB gun or even a toy gun is used, and
   • Effectively treats BB guns, toys, and even a disguised toothbrush as the equivalent of firearms for first-degree robbery purposes, contrary to legislative intent and the rule of lenity.
4. A consistent line of Second Department cases (e.g., Jones, Bowman, Layton) has long read the statute to preclude first-degree robbery under § 160.15(4) where the weapon is known to be a BB gun; the majority overturns that line sub silentio.

IV. Statutory Framework and Key Definitions

A. Robbery Degrees and Subdivisions

New York’s robbery statutes increase punishment based on aggravating factors layered on top of the basic act of forcible stealing.

1. Second-Degree Robbery – Penal Law § 160.10(2)(b)

Relevant here is § 160.10(2)(b), which makes it second-degree robbery when, in the course of committing a robbery, the defendant:

“displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm.”

This is a class C violent felony.

2. First-Degree Robbery – Penal Law § 160.15

First-degree robbery is a class B violent felony. A robbery is elevated to first degree if, in addition to forcibly stealing property, the defendant:

1. Causes serious physical injury – § 160.15(1); or
2. Is armed with a deadly weapon – § 160.15(2); or
3. Uses or threatens the immediate use of a dangerous instrument – § 160.15(3); or
4. Displays what appears to be a firearm – § 160.15(4).

Subdivision (4) mirrors the “appears to be a firearm” language of § 160.10(2)(b), but includes the affirmative defense that, if proven, reduces first-degree to second-degree robbery.

B. The Affirmative Defense in § 160.15(4)

The statutory text:

“[I]t is an affirmative defense that the [object displayed] was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged.”

Under Penal Law § 25.00(2):

“When a defense declared by statute to be an ‘affirmative defense’ is raised at a trial, the defendant has the burden of establishing such defense by a preponderance of the evidence.”

Thus:

• The People must prove beyond a reasonable doubt that the defendant forcibly stole property and displayed what appeared to be a firearm.
• The defendant must prove, by a preponderance of the evidence, that:
  • The object displayed was not loaded, or
  • Even if loaded, it could not discharge a shot readily capable of causing death or serious physical injury.

C. Definitions: Firearm, Deadly Weapon, Dangerous Instrument, Serious Physical Injury

• Firearm – Penal Law § 265.00:

  A weapon “designed to or may readily be converted to expel a projectile by action of explosive.”

  BB guns use compressed air or mechanical springs, not explosive propellants, and are not firearms under New York law (see dissent’s citations: People v. Wilson, 283 AD2d 339; People v. DePaul, 101 AD3d 1735).
• Deadly weapon – Penal Law § 10.00(12):

  Includes a “loaded weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged” (plus certain knives, clubs, etc.).

• Dangerous instrument – Penal Law § 10.00(13):

  “Any instrument, article or substance . . . which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury.”

• Serious physical injury – Penal Law § 10.00(10):

  Physical injury which “creates a substantial risk of death” or “causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.”

  The majority emphasizes that protracted impairment of vision or blinding qualifies as serious physical injury; BB guns can cause such injuries.

V. Precedents and Authorities Influencing the Court

A. People v. Gilliard (1988)

People v. Gilliard, 72 NY2d 877 (1988), establishes the basic standard for when an affirmative defense under § 160.15(4) must be charged. The Court held:

• The trial court must charge the affirmative defense when, viewing the evidence most favorably to the defendant, there is sufficient evidence for a rational jury to find by a preponderance that the defense is satisfied.
• In the context of § 160.15(4), that means some evidence that the object was not a loaded, readily capable weapon.

The majority in Smith heavily relies on this framework: the question is not whether a BB gun could be non‑deadly, but whether Smith offered any evidence that this particular BB gun was non‑deadly.

B. People v. Cotarelo (1988)

In People v. Cotarelo, 71 NY2d 941 (1988), involving an analogous affirmative defense, the Court refused to allow the jury to speculate about a weapon’s non‑dangerousness without evidentiary support. The Court held that where the record contains no proof about the weapon’s incapacity to cause serious injury, the issue should not go to the jury.

Smith quotes Cotarelo almost verbatim: without evidence about the particular BB gun’s capabilities, “the members of the jury could do no more than speculate” that it was not readily capable of causing serious physical injury. That principle controls the result.

C. People v. Hall (2011)

People v. Hall, 18 NY3d 122 (2011), involved a stun gun. The Court:

• Affirmed reversal of a first-degree robbery conviction because the People presented no witness or expert to explain the stun gun’s capabilities.
• Held that without such evidence, a jury cannot properly determine whether the stun gun meets statutory thresholds for “deadly weapon” or “dangerous instrument.”

In Smith, the majority uses Hall in two ways:

• To reinforce that whether an unconventional weapon is “readily capable” is a fact issue requiring evidence.
• To show that both prosecution and defense sometimes must provide technical evidence about non‑traditional weapons; jurors cannot be expected to know such things as common knowledge.

D. People v. Lopez (1989)

In People v. Lopez, 73 NY2d 214 (1989), the Court interpreted the term “displays what appears to be a firearm” in both § 160.10(2)(b) and § 160.15(4). The Court upheld a first-degree robbery conviction where:

• The defendant only placed his hand in his vest “as if he had a gun,”
• No actual weapon was recovered, and
• The issue was whether such conduct satisfied the “display” requirement.

The majority in Smith invokes Lopez to make two points:

1. § 160.15(4) can clearly apply even when the object is entirely unknown and may not be a real firearm at all; what matters is what the victim reasonably perceived.
2. The dissent’s position—that § 160.15(4) applies only when the object is unknown—cannot be squared with Lopez, which upheld a conviction based solely on the victim’s perception of a possible gun.

The dissent attempts to distinguish Lopez on the ground that in Lopez the record did not establish that the defendant’s object was a non‑firearm (BB gun, toy, etc.); the question was only about “display.” In Smith, by contrast, the prosecution itself proceeded on the theory that the object was a BB gun, i.e., definitively not a firearm. Thus, the dissent argues, Lopez does not control the “known non‑firearm” scenario.

E. People v. Howard (2013)

In People v. Howard, 22 NY3d 388 (2013), the Court considered an ineffective assistance claim. In dicta, the Court remarked:

“If the People had put forth no evidence of a gun other than the BB gun, it might be difficult to justify counsel’s failure to move to dismiss the first-degree [robbery] count.”

The dissent in Smith treats this as an important indication that:

• First-degree robbery under § 160.15(4) is problematic when the only weapon is a BB gun, and
• Counsel might be ineffective for not seeking dismissal in such a case.

The majority in Smith dismisses this as “equivocal dicta” and rejects it as a basis for altering the plain statutory operation of § 160.15(4).

F. BB‑Gun Cases: Akinlawon, Richard, Padua, and Others

• Akinlawon (4th Dept), Richard (3d Dept), Padua (1st Dept): These cases tended to treat BB guns as per se weapons “readily capable” of serious injury, often focusing on injuries such as eye damage and blinding. The Fourth Department in Akinlawon concluded that the affirmative defense under § 160.15(4) is available only when the BB gun is unloaded or inoperable.
• The Court of Appeals in Smith disapproves of that categorical rule: while BB guns can cause serious physical injury, whether a particular BB gun is “readily capable” of such injury is not a purely legal question. It must be determined case by case, with evidence.

G. Second Department Line: Jones, Bowman, Layton

The dissent relies on a consistent Second Department line:

• People v. Jones, 54 AD2d 740 (2d Dept 1976) – first-degree robbery conviction reversed where the gun was an air pistol; such a device is not a firearm, so subdivision (4) was inapplicable.
• People v. Bowman, 133 AD2d 701 (2d Dept 1987) – the People conceded that a plea to first-degree robbery was inappropriate when the displayed gun was a “beebee gun.”
• People v. Layton, 302 AD2d 408 (2d Dept 2003) – the defendant “established his affirmative defense that the gun used in the robbery was a BB gun and thus was not a firearm.”

The majority in Smith dismisses Layton as a “misreading” of the statute (equating “not a firearm” with satisfaction of the affirmative defense) and notes the others pre‑date Lopez. The dissent responds that the majority effectively overturns this body of law without adequate explanation and that Lopez does not conflict with the “known BB gun” holdings.

H. Other Authorities: Galindo, Talluto, Eboli, Gottlieb, Golb

The majority invokes:

• People v. Galindo, 38 NY3d 199 (2022) – courts must give effect to clear statutory text.
• People v. Talluto, 39 NY3d 306 (2022) – if statutory wording yields an unintended consequence, it is for the legislature, not the court, to fix it.
• People v. Eboli, 34 NY2d 281 (1974) – overlapping statutes and prosecutorial charging discretion are not, in themselves, unconstitutional or impermissible.

The dissent counters with:

• People v. Gottlieb, 36 NY2d 629 (1975) – penal statutes should not be extended beyond their fair scope.
• People v. Golb, 23 NY3d 455 (2014) – if two constructions of a criminal statute are plausible, courts should adopt the one more favorable to the defendant (rule of lenity).

These contrasting authorities frame the basic interpretive dispute: strict textualism with deference to legislative correction (majority) versus structural and purposive interpretation with lenity in borderline cases (dissent).

VI. The Majority’s Legal Reasoning

A. Defendant’s Evidentiary Burden on the Affirmative Defense

The majority’s central doctrinal move is to reconnect § 160.15(4)’s affirmative defense to Penal Law § 25.00(2). Because it is statutorily labeled an “affirmative defense”:

• The defendant bears the burden to produce evidence and to persuade the jury by a preponderance.
• The court will only instruct the jury on the defense if the record contains sufficient evidence such that a rational jury could find the defense proven.

Smith’s problem was not that BB guns are inherently deadly or inherently harmless; his problem was evidentiary. He presented:

• No expert testimony on CO₂ air pistols,
• No data about velocity, energy, or injury potential,
• No fact testimony about prior use of that gun, malfunctions, or low power,
• Nothing about whether it was actually loaded at the time of the robbery.

His only argument was the conclusory claim that a BB gun is not “a weapon that can actually shoot you dead.” That is argument, not evidence. On this record, any finding that the gun was not readily capable would have been pure speculation, which Cotarelo forbids.

B. BB Guns: Capable of Serious Injury but Fact‑Specific

The majority rejects the Appellate Division’s per se rule but insists that:

• BB guns can cause serious, even blinding eye injuries, which qualify as “serious physical injury” under § 10.00(10) (citing Richard and federal authority such as United States v. Shelton, 82 F4th 1294 [8th Cir 2023]).
• Thus, BB guns are not categorically excluded from the category of “loaded weapons” or “dangerous instruments”.
• However, whether a particular BB gun is “readily capable” of causing death or serious injury is a question of fact, not something courts can decide categorically as a matter of law (cf. Hall on stun guns).

In practical terms, the majority invites parties to litigate BB guns like any other technical “capability” issue:

• Experts may testify about velocity (feet per second), projectile type, energy, typical injuries.
• Physical demonstrations or testing may determine operability and power.
• Fact evidence (e.g., prior incidents or injuries) might be relevant in some cases.

C. Statutory Text and Rejection of the Dissent’s Structural Reading

The dissent argues that § 160.15(4) “must be read” as applying only when the object displayed is unknown or unrecovered. The majority responds:

• There is no textual basis for such a limitation. Nothing in § 160.15(4) or § 160.10(2)(b) suggests that the “appears to be a firearm” language changes meaning when the object is later recovered.
• The difference between first-degree subdivision (4) and second-degree § 160.10(2)(b) is “self‑evident”: the former is first-degree plus an affirmative defense. That alone explains the structure; no hidden limitation is necessary.
• To read into the statute an unstated condition (that subdivision 4 applies only when the object is unknown) would be judicial lawmaking, contrary to Galindo and Talluto.

The majority further stresses that concerns about overreach or harshness are:

• Matters for the legislature, if the statute truly yields unintended consequences.
• Partially mitigated by prosecutorial discretion, as prosecutors need not always charge the highest possible degree (citing Eboli on overlapping statutes).

D. Lopez and the Scope of “Display”

The majority invokes Lopez as a key precedent:

• In Lopez, the Court accepted that a hand placed inside a vest “as if he had a gun” satisfies the display element under both § 160.10(2)(b) and § 160.15(4) when the victim reasonably perceives a firearm.
• This reinforces that the legislature intended subdivision (4) to apply broadly to cases in which the victim believes the robber has a gun, irrespective of whether the item is later recovered or turns out to be a non‑firearm.

The majority views the dissent’s reading as “manufacturing” a nonexistent extra element into § 160.15(4): that the item be unknown. The majority insists courts must confine themselves to the elements actually written.

E. Disposition of Other Issues

The majority notes briefly that the remaining arguments in Smith’s main and pro se supplemental briefs do not warrant reversal. The opinion is thus tightly focused on:

• The affirmative defense instruction; and
• The construction of § 160.15(4) in relation to BB guns and the overall robbery scheme.

VII. The Dissent’s Competing Interpretation

A. Structural Reading of the Robbery Statute

The dissent’s core move is to interpret § 160.15(4) not in isolation, but as part of a carefully designed tiered robbery scheme. Chief Judge Wilson stresses:

• Second-degree robbery under § 160.10(2)(b) and first-degree robbery § 160.15(4) use identical text (“displays what appears to be a firearm”), except for the affirmative defense.
• Under ordinary principles (“as in most statutes creating degrees”), the more serious crime must contain additional elements beyond the lesser-included offense.
• That extra element cannot be only the mere possibility of an affirmative defense; there must be some substantive distinction in the conduct covered.

To harmonize the scheme, the dissent concludes:

• Subdivision (4) is meant to cover the common scenario where:
  • The robber clearly displayed something that looked like a firearm, but
  • The object is not recovered or its nature is unknown, so the People cannot prove it was a loaded firearm beyond a reasonable doubt.
• In that scenario, the legislature created a presumption: what appears to be a firearm counts as a loaded weapon unless the defendant proves otherwise via the affirmative defense.
• However, when it is established that the object was not a firearm (e.g., BB gun, toy, toothbrush), subdivision (4) should not be the vehicle for first-degree robbery; instead, the People must charge:
  • Second-degree robbery under § 160.10(2)(b) (for displaying something that appears to be a firearm), or
  • First-degree robbery under subdivisions (1)–(3), and then bear the burden to prove serious injury, a deadly weapon, or dangerous instrument.

B. Legislative History and Purpose of Subdivision (4)

The dissent relies heavily on the legislative history summarized in Lopez:

• Subdivision (4) was introduced to solve a “very serious law enforcement problem”: in robberies using guns, if the weapon was neither fired nor recovered, it was “almost impossible” for prosecutors to prove the defendant was “armed” with a loaded, operable firearm.
• The Legislature, therefore, allowed the jury to infer that an object appearing to be a firearm was a loaded operable gun, subject to an affirmative defense if the defendant could show otherwise.

From this, the dissent reasons:

• The purpose of subdivision (4) is to alleviate the People’s proof burden only in cases where they cannot determine what the object actually was.
• It was not intended to create a general shortcut allowing the People to avoid proving dangerousness where they know the item was a BB gun, toy, or other non‑firearm.

C. Burden‑Shifting and Anomalies Under the Majority’s Reading

The dissent highlights what it sees as a profound anomaly:

• Under § 160.15(2) and (3), when the People argue a weapon (e.g., BB gun, crowbar) is dangerous enough to justify first-degree robbery, they must prove that the object is “readily capable” of causing death or serious physical injury.
• Under the majority’s reading of § 160.15(4), if the People instead allege that a non‑firearm appeared to be a firearm, the burden shifts to the defendant to prove the opposite—i.e., that the object was not readily capable of such harm.

Thus, the dissent argues, the People can effectively evade their own burden of proof anytime a BB gun or toy gun is used, by choosing to charge under subdivision (4) rather than subdivisions (2) or (3). This, the dissent says, both:

• Distorts the statutory design (which ordinarily increases punishment by adding elements for the People to prove, not by shifting burdens to the defendant); and
• Conflicts with the rule of lenity and the general principle that penal liability should not be extended beyond the statute’s fair scope.

D. Application to Smith: Automatic Reduction to Second Degree

For the dissent, once:

• The People recovered the BB gun,
• Proceeded at trial on the theory that it was the gun used, and
• Made no attempt to prove that this BB gun was a deadly weapon or dangerous instrument,

the legal consequence is clear:

• The affirmative defense in § 160.15(4) becomes effectively automatic—because the weapon is not a firearm—and Smith could not be convicted of first-degree robbery under that subdivision.
• The proper conviction would be second-degree robbery under § 160.10(2)(b), which penalizes displaying what appears to be a firearm without any need for the object to be deadly.

In the dissent’s view, this approach:

• Preserves the statutory distinction between first- and second-degree robbery,
• Prevents unjustified burden-shifting,
• Aligns with decades of Second Department case law,
• And comports with the legislative history’s focus on unknown weapons.

VIII. Complex Concepts Simplified

A. What Is an “Affirmative Defense,” Practically Speaking?

An affirmative defense is not a mere negation of an element of the crime. Instead:

• The prosecution must first prove all elements of the offense beyond a reasonable doubt.
• Then, the defendant can introduce a separate set of facts that, if proven, mitigates or defeats liability even though the crime’s elements are satisfied.
• The defendant must prove those mitigating facts by a preponderance of the evidence (more likely than not).

In § 160.15(4), the structure is:

1. The People: prove the robbery and that the defendant displayed what appeared to be a firearm.
2. The Defendant: may affirmatively prove that the object was not a loaded, readily capable weapon; if he does, he is still guilty of robbery but only in the second degree.

B. “Readily Capable of Producing Death or Serious Physical Injury”

“Readily capable” is a practical, fact‑driven standard. It asks:

• In the circumstances of the crime, was the weapon or instrument capable of causing death or serious physical injury in a fairly straightforward, non‑remote way?

For a BB gun, factors might include:

• Muzzle velocity,
• Mass and shape of the projectile,
• Distance from victim,
• Target area (e.g., directed at the eye or head),
• Whether the gun was actually loaded and operable.

A low‑velocity BB gun fired from far away at a thick‑clothed torso is very different from a high‑velocity metal‑BB pistol pressed against someone’s eye or temple.

C. “Serious Physical Injury” vs. “Physical Injury”

• Physical injury – impairment of physical condition or substantial pain (e.g., bruises, cuts, minor fractures).
• Serious physical injury – much more grave; includes:
  • Substantial risk of death,
  • Serious and protracted disfigurement,
  • Protracted impairment of health, or
  • Protracted loss or impairment of an organ function (e.g., permanent or long‑term vision loss).

The majority stresses that loss or long‑term impairment of vision is clearly “serious physical injury,” so BB guns capable of blinding someone are serious weapons for purposes of the robbery statute.

D. Firearms, BB Guns, Deadly Weapons, Dangerous Instruments

• Firearm – uses an explosive propellant; BB guns do not, so they are not “firearms.”
• BB gun – expels projectiles using air or springs; legally, it can sometimes be:
  • Not dangerous at all (e.g., weak toy),
  • A “dangerous instrument” (if, in context, readily capable of serious harm), or
  • Arguably even a “deadly weapon” if loaded and powerful enough.
• Deadly weapon – either a listed weapon (gun, knife, etc.) or a loaded weapon whose shot is readily capable of causing serious injury or death.
• Dangerous instrument – anything (hammer, bottle, BB gun) that, in the way it is used or threatened, is readily capable of causing death or serious injury.

E. What Does It Mean to “Display What Appears to Be a Firearm”?

Key aspects of this concept, as developed in Lopez and other cases:

• It is largely about the victim’s perception: did the robber, by words, gestures, or objects, lead the victim reasonably to believe he had a gun?
• The robber does not have to actually show a real gun; covering it, keeping it in a pocket, or miming the presence of a gun may suffice, depending on the circumstances.
• The actual nature of the object (real gun, toy gun, toothbrush, BB gun) matters later for degree and defenses, but not for the initial “display” element.

IX. Practical Impact and Future Implications

A. For Prosecutors

After Smith, prosecutors statewide have clear guidance:

• They may charge first-degree robbery under § 160.15(4) whenever a defendant forcibly steals property and displays what appears to be a firearm, even if the actual object is later shown to be a BB gun, toy, or other non‑firearm.
• They are not required to prove that the BB gun was deadly or a dangerous instrument to obtain a first-degree conviction under subdivision (4); that burden lies with the defendant if he invokes the affirmative defense.
• If the defense does present evidence suggesting the BB gun is not readily capable of serious injury, the People may need to rebut with their own expert or fact evidence or risk a reduction to second degree.

Strategically, this means:

• § 160.15(4) will likely remain the preferred charging vehicle in many gun‑display robberies, especially where the object’s capabilities are uncertain.
• In cases involving obviously non‑dangerous objects (e.g., obvious toy), some district attorneys may elect second-degree charges for proportionality or resource reasons, but they are not legally required to.

B. For Defense Counsel

Defense lawyers representing robbery defendants who used BB guns or similar objects must now:

• Understand that simply labeling the weapon a BB gun is not enough to obtain the affirmative defense charge or a reduction to second degree.
• Gather concrete evidence on:
  • Operability (Is the gun functional?),
  • Loading (Was it loaded at the time?),
  • Power and injury potential (through expert testing or manufacturer specs),
  • How the gun was actually used or threatened in the robbery.
• Consider retaining experts in ballistics or air‑gun technology to testify that a particular device is not “readily capable” of serious injury.

Additionally, counsel should:

• Be aware of Hall and Smith as templates: juries cannot guess about capabilities; someone must explain them.
• Make a clear record seeking the affirmative defense instruction, supported by whatever evidence is available, to preserve appellate issues.

C. For Trial Judges

Trial courts now have a relatively straightforward standard:

• Ask whether there is any non‑speculative evidence that could allow a rational jury to find, by a preponderance, that the object was not a loaded weapon readily capable of causing death or serious injury.
• If yes, the affirmative defense must be charged; if no, the request should be denied.

Judges must also manage:

• The admissibility and scope of expert testimony on weapon capabilities, and
• Potential confusion between:
  • The prosecution’s burden on elements (beyond a reasonable doubt), and
  • The defendant’s burden on the affirmative defense (preponderance of the evidence).

D. For Appellate Litigation and Future Cases

Likely flashpoints include:

• What quantum and quality of evidence suffices to require the affirmative defense charge. Is a single expert’s opinion enough? Manufacturer’s specs? Photographs and common‑sense inferences?
• Whether, in some future case, a BB gun’s capabilities are so minimal and obvious (e.g., plastic toy incapable of firing any projectile) that a court might treat non‑dangerousness as a matter of law.
• Whether legislative amendments will clarify or revise the relationship between § 160.10(2)(b) and § 160.15(4) to avoid the potential burden‑shifting anomaly highlighted by the dissent.

E. Policy Concerns and Possible Legislative Response

The dissent’s critique raises broader policy questions:

• Should the law really treat a robber with a BB gun or toy, who causes no injury, the same way as someone with a loaded firearm?
• Is it fair to make an indigent defendant bear the burden (and expense) of expert testing to prove a BB gun’s non‑dangerousness when the People have readier access to forensic resources?
• Does the current structure inadvertently encourage overcharging or uneven use of prosecutorial discretion?

The majority explicitly states that any such “unintended consequences” are for the legislature to correct. If these concerns gain traction, we may see:

• Statutory amendments clarifying BB guns’ status,
• Refinements to the affirmative defense (e.g., different allocation of burdens for known non‑firearm objects), or
• Sentencing reforms distinguishing between real firearms and imitation or low‑powered weapons.

X. Conclusion

People v. Smith is a significant clarification of New York robbery law at the intersection of statutory text, the structure of degrees, and the practical realities of non‑firearm weapons.

The Court holds that:

• Defendants charged with first-degree robbery under Penal Law § 160.15(4) must produce some evidence—not mere argument—that the displayed object was not a loaded weapon readily capable of causing death or serious physical injury, in order to receive the affirmative defense instruction.
• BB guns are neither categorically harmless nor categorically deadly; their status depends on case‑specific proof.
• Subdivision (4) applies even when the object is known to be a BB gun or other non‑firearm; it is not limited to cases where the weapon is unknown or unrecovered.

By contrast, the dissent would limit § 160.15(4) to unknown‑weapon cases, reduce Smith’s conviction to second-degree robbery, and prevent the People from using subdivision (4) to sidestep their burdens under subdivisions (2) and (3). This disagreement exposes a genuine tension between textualism and structural purposivism, and between prosecutorial discretion and the rule of lenity.

In practical terms, Smith signals to defendants that if they wish to avoid first-degree liability where a BB gun or similar object is used, they will need to affirmatively litigate the weapon’s capabilities. It equally signals to prosecutors and trial courts that capability questions are factual and will increasingly require technical evidence. Unless and until the legislature revisits the robbery statutes, Smith will be the central precedent governing BB‑gun robberies and the scope of the § 160.15(4) affirmative defense in New York.