People v. Green

56 A.D.2d 610, 391 N.Y.S.2d 655, 1977 N.Y. App. Div. LEXIS 10692

Opinion

Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered November 17, 1972, convicting him of robbery in the first degree and grand larceny in the second degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law and the facts, by reducing the conviction of robbery in the first degree to a conviction of robbery in the third degree, and vacating the sentence imposed upon that conviction. As so modified, judgment affirmed and case remitted to Criminal Term for resentence on the conviction of robbery in the third degree. Defendant was charged with robbery in the first degree, to wit, forcibly stealing property while using or threatening "the immediate use of a dangerous instrument” (see Penal Law, § 160.15, subd 3). A dangerous instrument is defined as "any instrument * * * which * * * is readily capable of causing death or other serious physical injury” (Penal law, § 10.00, subd 13). The evidence adduced at trial was insufficient to establish that the object partially displayed by defendant during the robbery was an instrument "readily capable of causing death or other serious physical injury.” Consequently, the charge of robbery in the first degree was not sufficiently proved. Hopkins, Acting P. J., Martuscello, Cohalan and Damiani, JJ., concur.