People v. Cherry

49 A.D.2d 860, 374 N.Y.S.2d 312, 1975 N.Y. App. Div. LEXIS 11038

Opinion

Judgment, Supreme Court, New York County, rendered June 21, 1973, convicting defendant, after a jury trial, of robbery in the second degree, unanimously modified, on the law and as a matter of discretion in the interest of justice, to the extent of changing it to one of conviction for the crime of grand larceny in the third degree and remitting the case for resentence. The evidence adduced at the trial established to the jury’s satisfaction that defendant "grabbed” a decoy officer’s arm and "jerked” him up off a park bench while an accomplice pulled out the officer’s wallet, ripping the button which secured the pocket in the process. The trial court properly submitted the robbery and larceny counts to the jury in the alternative (CPL 300.40, subd 3, par [b]) and the jury found defendant guilty of the greater count. Unfortunately, in the course of his charge to the jury the Trial Judge improperly advised it that the mere "touching” of the victim was the equivalent of physical force and used a concededly erroneous illustration to explain the difference between robbery and larceny. In view of the closeness of the question as to which crime had in fact been committed, we believe the interests of justice would be best served by reducing appellant’s conviction to one for the lesser included offense. Concur—Kupferman, J. P., Murphy, Lupiano, Capozzoli and Lane, JJ.