People v. Johnson

64 A.D.2d 613, 406 N.Y.S.2d 361, 1978 N.Y. App. Div. LEXIS 12389

Opinion

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered May 21, 1975 (the date on the clerk’s extract is July 25, 1975), convicting him of attempted robbery in the first degree and attempted grand larceny in the third degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reversing the conviction of attempted robbery in the first degree, and the sentence imposed thereon, and the said count is dismissed. As so modified, judgment affirmed. The evidence adduced at the trial was insufficient to establish that the defendant possessed a weapon (see People v Early, 59 AD2d 912). Moreover, the jury’s verdict acquitting defendant of attempted robbery in the third degree precludes this court from reducing the conviction to the lesser included offense (see People v Matos, 50 AD2d 872; People v Belvin, 47 AD2d 929). Martuscello, J. P., Damiani, Margett and O’Connor, JJ., concur.