People v. Elder

Appellate Division of the Supreme Court of New York

People v. Elder

203 A.D.2d 903, 612 N.Y.S.2d 1012, 1994 N.Y. App. Div. LEXIS 4882

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 15, 1994

StatusPublished

This text of 203 A.D.2d 903 (People v. Elder) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Elder, 203 A.D.2d 903, 612 N.Y.S.2d 1012, 1994 N.Y. App. Div. LEXIS 4882 (N.Y. Ct. App. 1994).

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Opinion

—Judgment unanimously modified on the law and as modified affirmed and matter remitted to Cayuga County Court for further proceedings in accordance with the following Memorandum: In order to establish defendant’s guilt of robbery in the first degree (see, Penal Law § 160.15 [3]), the People were required to prove that defendant actually possessed a dangerous instrument at the time of the crime (see, People v Pena, 50 NY2d 400, 407, cert denied 449 US 1087). Viewing the evidence in the light most favorable to the People (see, People v Contes, 60 NY2d 620), we conclude that the People failed to meet that burden with respect to the charge of robbery in the first degree in count II of the indictment. We modify the judgment, therefore, by reducing defendant’s conviction of robbery in the first degree under count II of the indictment to robbery in the third degree (see, Penal Law § 160.05) and by vacating the sentence imposed thereon, and we remit the matter for resentencing on that count (see, CPL 470.15 [2] [a]; 470.20 [4]).

We have examined defendant’s remaining contentions and have determined that none requires reversal. (Appeal from Judgment of Cayuga County Court, Contiguglia, J. — Robbery, 1st Degree.) Present — Green, J. P., Pine, Fallon, Callahan and Boehm, JJ.

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—Judgment unanimously modified on the law and as modified affirmed and matter remitted to Cayuga County Court for further proceedings in accordance with the following Memorandum: In order to establish defendant’s guilt of robbery in the first degree (see, Penal Law § 160.15 [3]), the People were required to prove that defendant actually possessed a dangerous instrument at the time of the crime (see, People v Pena, 50 NY2d 400, 407, cert denied 449 US 1087). Viewing the evidence in the light most favorable to the People (see, People v Contes, 60 NY2d 620), we conclude that the People failed to meet that burden with respect to the charge of robbery in the first degree in count II of the indictment. We modify the judgment, therefore, by reducing defendant’s conviction of robbery in the first degree under count II of the indictment to robbery in the third degree (see, Penal Law § 160.05) and by vacating the sentence imposed thereon, and we remit the matter for resentencing on that count (see, CPL 470.15 [2] [a]; 470.20 [4]).

We have examined defendant’s remaining contentions and have determined that none requires reversal. (Appeal from Judgment of Cayuga County Court, Contiguglia, J. — Robbery, 1st Degree.) Present — Green, J. P., Pine, Fallon, Callahan and Boehm, JJ.

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Bluebook (online)

203 A.D.2d 903, 612 N.Y.S.2d 1012, 1994 N.Y. App. Div. LEXIS 4882, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-elder-nyappdiv-1994.

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