¶1concurs in part and dissents in part and votes to modify the judgment appealed from, by vacating the defendant’s conviction of robbery in the first degree and the sentence imposed thereon and ordering a new trial on that count, and affirming the judgment as so modified, with the following memorandum with which Brown, J., concurs. The issue which divides this court on appeal is whether the trial court should have instructed the jury to consider whether the defendant had interposed a viable affirmative defense to the charge of robbery in the first degree. Pursuant to Penal Law § 160.15 (4), where a defendant is prosecuted for robbery in the first degree and he is charged with having displayed what appears to be, inter alia, a firearm during the course of the commission of the crime,, it is an affirmative defense if the firearm displayed by the defendant was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged.
¶2During the course of the trial of this action, uncontradicted evidence was adduced to the effect that the weapon displayed by the defendant apparently contained blanks. Although two eyewitnesses testified that they had heard two gun shots fired, the police, after a thorough and detailed investigation of the robbery site, were unable to discover any spent shells nor did they uncover or ascertain any bullet holes. Moreover, although one of the eyewitnesses testified that the defendant *730had aimed and fired the weapon in the direction of a pane of glass, this glass did not shatter nor was it pierced in any manner. Notwithstanding the uncontroverted proof regarding the apparent inability of the defendant’s weapon to produce a shot readily capable of causing death or serious physical injury, my confreres of the majority have, nevertheless, concluded that the trial court committed no error in rejecting the defendant’s request that the affirmative defense be charged and explained to the jury. I firmly disagree with this conclusion and, therefore, dissent.
¶3The defendant in the instant case displayed a firearm, and, no doubt, induced fear in the minds of all of the victims and witnesses to the robbery. The fact that a weapon was displayed, however, is not at issue in this appeal. Our sole concern is the evidence regarding the inoperability of the weapon, for the Legislature has determined that where a defendant displays an unloaded or otherwise inoperative firearm, he is entitled to the benefit of the affirmative defense contained in Penal Law § 160.15 (4) and may succeed in reducing his liability from robbery in the first degree to robbery in the second degree (see, People v Baskerville, 60 NY2d 374; People v Williams, 61 AD2d 992).
¶4The testimony elicited from the People’s witnesses by the defense effectively established that the weapon utilized by the defendant in furtherance of the robbery contained only blank cartridges and did not fire any projectiles. Although two shots were allegedly fired, no bullets were produced, and no one was harmed in a physical sense, notwithstanding the fact that the weapon, according to the testimony of the complaining witness, was aimed and fired in his direction. Without the benefit of the requested charge regarding the affirmative defense, the jurors may have erroneously believed that the operability of the weapon and its capacity to discharge a shot capable of causing death or physical injury had no bearing upon the defendant’s culpability of robbery in the first degree, when, in fact, these issues are pivotal in terms of the defendant’s criminal responsibility.
¶5The majority in this case has conceded that where there is proof concerning a weapon’s inability to discharge a shot which could result in death or other serious physical injury, an affirmative defense to the crime of robbery in the first degree has been sent forth. Despite this concession and despite the existence of evidence that the weapon possessed by the defendant did not propel any material capable of causing death or physical injury, it is the majority’s position that it *731was not necessary to charge the jury with respect to the affirmative defense. The jury was precluded from considering this issue and the defendant was thereby deprived of the "opportunity to fight his way out of a first degree conviction”, although there was reasonable and ample proof to support the affirmative defense.
¶6The decision to sustain the trial court’s refusal to charge the affirmative defense is premised, in large part, upon the majority’s perception that a weapon loaded with blank rounds can cause death or serious physical injury. Indeed, my colleagues have implicitly ruled upon the functional utility of a gun containing blanks, as a matter of law. Suffice it to say that the proof adduced at bar was overwhelmingly deficient in terms of establishing the operability or lethal nature of the weapon used by the defendant. Much like a starter’s pistol, which has been declared to be a weapon insufficient to sustain a conviction for robbery in the first degree (see, People v Wilcox, 53 AD2d 738, upon rearg 54 AD2d 801), a gun containing blank rounds may generate noise and may even cause a spark when fired; however, it does not generally propel or emit harmful materials, sufficient to kill or cause serious physical injury (see generally, Annotation, 81 ALR3d 1006). Notwithstanding the tragic fate of actor Jon-Erik Hexum, which was an unfortunate but legally irrelevant incident, the jury in the instant case should have been permitted to determine, as a factual matter, whether the weapon used by the defendant was capable of discharging a shot which could result in death or other serious physical injury, as the statute instructs (see, 2 CJI [NY] PL 160.15 [4]).
¶7Finally, I find the majority’s reliance upon the case of People v Ames (115 AD2d 543, lv denied, 67 NY2d 759), to be factually miscast. Amesinvolved a situation where the gun utilized by the defendant was only partially loaded and two eyewitnesses testified that they saw bullets in some but not all of the cylinders in the gun. This testimony adequately explained the gun’s failure to fire. In the instant case, however, the People’s own witnesses testified that the weapon utilized in the robbery apparently contained blanks and thus, a factual question was raised concerning the weapon’s ability to produce a shot readily capable of causing death or serious physical injury.
¶8In sum, the defendant’s request that the jury be provided with instructions concerning the affirmative defense to robbery in the first degree should not have been rejected, and I would, therefore, modify the judgment appealed from by re*732versing the defendant’s conviction of robbery in the first degree, vacating the sentence imposed thereon, and ordering a new trial on that count. In my view, the defendant is legally entitled, based on the evidence adduced, to have a jury determine whether he established, by a preponderance of the evidence, that the weapon he possessed was nonlethal and merely contained blank rounds which were incapable of causing death or serious physical injury.