People v. Davis

240 A.D.2d 183, 658 N.Y.S.2d 874, 1997 N.Y. App. Div. LEXIS 6000

Opinion

Judgment, Supreme Court, New York County (Frederic Berman, J.), rendered November 3, 1994, convicting defendant, after a jury trial, of robbery in the second and third degrees, and sentencing him to concurrent terms of 3 to 9 years and 21/s to 7 years, respectively, unanimously modified, on the law, to the extent of vacating the conviction of robbery in the third degree and dismissing that count, and otherwise affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. Defendant’s acts were sufficient to constitute asportation, however temporary, of the victim’s chain (see, People v Smith, 176 AD2d 185, lv denied 79 NY2d 864; People v Reddick, 159 AD2d 267, lv denied 76 NY2d 794), and, since there was no reasonable view of the evidence to the contrary, the court properly declined to submit attempted robbery in the second and third degrees as lesser included offenses of the completed robbery charges.

As the People concede, since defendant was convicted of second-degree robbery, his conviction of the lesser included offense of third-degree robbery should be vacated (People v Smith, 176 AD2d 185, supra). Concur—Sullivan, J. P., Ellerin, Tom, Mazzarelli and Andrias, JJ.