Magistrate Judge Gold (SDNY) recently issued a Report & Recommendation (R&R), available here, concluding that third degree New York robbery, N.Y. Penal Law §160.05, is not a violent felony under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). See Baldwin v. United States, No. 16-CV-3350. Judge Korman has adopted the R&R.
Judge Gold’s reasoning will be familiar to those who have read opinions by the First Circuit, Judge Rakoff, and others reaching the same conclusion. Significantly, Judge Gold rejects the reasoning of a Sixth Circuit opinion, Perez v. United States, 885 F.3d 984, 990 (6th Cir. 2018), holding that third degree NY robbery is a crime of violence under the ACCA. The Sixth Circuit’s holding, Judge Gold explains, relies on a recent New York Court of Appeals case for the proposition that New York robbery cannot be “a taking” “by sudden or stealthy seizure or snatching” that is “akin to pickpocketing, or the crime of jostling.” People v. Jurgins, 26 N.Y.3d 607, 614 (2015). In Jurgins, however, the parties stipulated that robbery does not include a “sudden or stealthy seizure or snatching,” and the New York Court of Appeals did not itself adopt this construction of the New York robbery statute. See Baldwin, slip op. at 9.