An appellate court in Albany has upheld a gun-related robbery conviction in a case where the defendant did not reveal the weapon to the victim but did point it at a man pursuing him.

The Appellate Division, Third Department, unanimously held that even though the robbery victim was not directly threatened, and even though the weapon may have been a BB gun and not a firearm, the Montgomery County verdict against Nelson Colon stands.

Colon was convicted of second-degree robbery and second-degree menacing before Montgomery County Judge Felix Catena (See Profile) and was sentenced to a 13-year state prison term for holding up a convenience store.

According to the decision in People v. Colon, 104935, Colon confronted the cashier and said, “Give me the money. Gun,” but did not display any weapon.

After Colon fled, a customer alerted her brother, who was across the street and pursued the robber. Colon pointed a weapon at him. The weapon was never recovered, but the pursuer testified that it could have been a BB gun.

On appeal, Adam Parisi of Schenectady argued that the conviction should be reduced to third-degree robbery because there was no proof that the defendant displayed an apparent firearm.

The Third Department, in an opinion by Justice William McCarthy (See Profile), agreed that the cashier’s testimony was insufficient to establish that Colon displayed a firearm during the robbery. However, he said there was sufficient evidence to show that the defendant displayed “what appeared to be” a firearm to the individual pursuing him.

Also on the panel were Presiding Justice Karen Peters (See Profile) and justices Leslie Stein (See Profile) and Robert Rose (See Profile). Sarah Leszczynski of Fonda argued for the prosecution.

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