People v. Cancel

116 A.D.2d 655, 498 N.Y.S.2d 321, 1986 N.Y. App. Div. LEXIS 51520

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 21, 1986
• Status: Published

Opinion

Appeal by defendant from a judgment of the County Court, Nassau County (Boklan, J.), rendered April 23, 1984, convicting him of assault in the second degree (two counts), burglary in the first degree (four counts), robbery in the first degree (three counts) and criminal use of a firearm in the first degree (two counts), upon a jury verdict, and imposing sentence.

Judgment modified, on the law, by reversing the conviction on count 14 of the indictment charging defendant with assault in the second degree, sentence imposed thereon vacated, and said count of the indictment dismissed. As so modified, judgment affirmed.

There is insufficient evidence in the record to support the jury’s finding that defendant, either as principal or accessory, assaulted the complainant with a deadly weapon or dangerous instrument as charged in the fourteenth count of the indictment (see, People v La Belle, 18 NY2d 405). Accordingly, the judgment must be modified by reversing defendant’s conviction on count 14 of the indictment charging him with assault in the second degree, vacating the sentence imposed thereon, and dismissing said count of the indictment.

We have reviewed defendant’s remaining allegations of error, including his argument directed toward the court’s charge on accessorial liability, and find them to either be without merit, or involve harmless error (see, People v Rockwell, 97 AD2d 853; People v Gates, 24 NY2d 666; People v Hall, 89 AD2d 898). Mangano, J. P., Brown, Rubin and Lawrence, JJ., concur.