People v. Bennett

147 A.D.2d 967, 537 N.Y.S.2d 416, 1989 N.Y. App. Div. LEXIS 1295

Opinion

— Judgment unanimously reversed on the law and indictment dismissed. Memorandum: The court erred in charging, over defendant’s objection, that the jury could consider the crime of robbery in the third degree (Penal Law § 160.05) as a lesser included offense of robbery in the second degree under the first count of the indictment, which alleged that he forcibly stole property while aided by another person actually present (see, Penal Law § 160.10 [1]). There is no reasonable view of the evidence by which defendant was guilty of forcibly stealing property but that he was not aided by another person actually present (see, People v Glover, 57 NY2d 61, 63; see also, People v Hicks, 134 AD2d 909, lv denied 70 NY2d 956). (Appeal from judgment of Supreme Court, Erie County, Marshall, J. — robbery, third degree.) Present — Callahan, J. P., Doerr, Green, Pine and Lawton, JJ.