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Let’s Break Down Exactly What Manhattan DA Alvin Bragg’s Memo Says

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Let’s Break Down Exactly What Manhattan DA Alvin Bragg’s Memo Says

New York Post January 12, 2022
Policing & Public SafetyAll

Manhattan DA Alvin Bragg insists his progressive agenda was only meant for an "internal lawyer audience."

Nine days ago, Manhattan DA Alvin Bragg released his “day one” memo directing his staff not to prosecute armed robberies — and since then, he’s gotten relentless criticism. Bragg could fix this by saying: “I was wrong.” Instead, he’s saying: You were wrong.

Everyone from Police Commissioner Keechant Sewell to Partnership for New York City chief Kathy Wylde misunderstood the memo, he claimed.

Sorry, Mr. Bragg — mansplaining is not going to get you out of this one.

Monday, Bragg tried this spin on radio host Brian Lehrer. “The memo was intended for our internal lawyer audience.” Since you’re not a lawyer, never mind an “internal lawyer,” you didn’t understand it.

“There is what I think is obvious,” Bragg told Lehrer. “Of course, the person that goes into the store with the loaded gun or unloaded and waves it around, that’s a robbery.”

On the other hand, he continued, there are “dangerous instruments, which can be almost anything. If I pick up a pork chop and throw it at you, that could be considered a dangerous instrument. We were trying to get rid of a category . . . which aren’t the gun cases.”

Nope. Let’s take the memo apart, point by point. Since Bragg is trying to hide behind legalese, you’ll have to read it. Bragg laid out five sections of law that cover armed robberies — and tells his staff not to prosecute them.

“An act that could be charged under PL 160.15 (2, 3, or 4), 160.10(2b), or 160.05 that occurs in a commercial setting should be charged under PL 155.25 if the force or threat of force consists of displaying a dangerous instrument or similar behavior but does not create a genuine risk of physical harm,” the memo reads.

OK, then, let’s start with the first three, 160.15 (2, 3 and 4). What do those parts of the state law say — exactly?

160.15 overall is first degree robbery, a serious felony.

Provision #2 of this law defines a person eligible for a first-degree robbery charge if he is “armed with a deadly weapon.”

#3 is for when a suspect “uses or threatens the immediate use of a dangerous instrument.”

But #4 of this law is the most important. It covers loaded guns, and only loaded guns. A person faces a 160.15(4) charge if he “displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm.” An “affirmative defense” against this charge is that “such pistol . . . or other firearm was not a loaded weapon.”

To be absolutely clear: 160.15(4) mentions no other type of weapon except for a loaded gun. You can’t be charged with this count unless you allegedly rob someone with a loaded gun.

Let’s now consider the fourth provision Bragg included in his do-not-prosecute directive: second-degree felony robbery, 160.10(2b). 160.10(2b) says one thing, and only one thing. A person is guilty of second-degree robbery when “in the course of the commission of the crime” (the “2” section), he “displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm” (the “b” section), loaded or unloaded.

Fifth and finally, Bragg tells prosecutors to drop all charges under “160.05” — third-degree robbery, or when a suspect “forcibly steals property.”

To review: Bragg calls out five provisions of criminal law.

Two of the provisions cover only gun crimes.

The third covers only “deadly weapons,” like knives (not pork chops).

The fourth covers only the actual use or immediate threat with a dangerous instrument.

The fifth covers only the actual use of physical force, not the threat of physical force.

Then, Bragg told his lawyers not to prosecute these crimes.

Instead, suspects “should be charged under “155.25,” which is misdemeanor larceny.

In short: If you hold a gun to a clerk’s face and ask them to empty the cash register, it’s a misdemeanor, with a theoretical year in prison, but, in practice, no real punishment.

What aren’t Sewell, Wylde and the rest of us understanding?

After winning last June’s primary election, Bragg had six months to prepare this thing — and ask friends, foes, legal advisers, and PR experts to give him confidential feedback. “You know, Alvin,” they would likely have said, “people are going to interpret this is a ‘get-out-of-jail-free card’ on all armed robberies where someone isn’t actually shot or killed, because that is exactly what it says.”

No, Bragg screwed up another way: he expected to bask in accolades for his noble progressive intentions.

Instead, even the Rev. Al Sharpton wanted assurance that armed gun robbers would still face felony charges.

Sometimes, the law is an ass. Other times . . .

This piece originally appeared at the New York Post


Nicole Gelinas is a senior fellow at the Manhattan Institute and contributing editor at City Journal. Follow her on Twitter here.

Photo by Keith Lance/iStock