People v. McBride

203 A.D.2d 85, 610 N.Y.S.2d 218, 1994 N.Y. App. Div. LEXIS 3795

Opinion

—Judgment, Supreme Court, Bronx County (Phylis Skloot Bamberger, J.), rendered September 14, 1989, convicting defendant, after a jury trial, of two counts each of robbery in the first degree, robbery in the second degree, and assault in the second degree, and sentencing him to two terms of 2 Vs to 7 years, two terms of IV2 to AV2 years, and two terms of 1 to 3 years, respectively, all sentences to run concurrently, unanimously modified, on the law, the facts and as a matter of discretion in the interest of justice, to the extent of dismissing the second count of the indictment, charging robbery in the first degree, and the seventh and eighth counts of the indictment, charging assault in the second degree, and, otherwise affirmed.

Viewed in a light most favorable to the People (People v Contes, 60 NY2d 620, 621), the testimony of the cab driver victim with respect to the first count of the indictment that he was struck in the back of the head with an unseen, object but felt, "blunt object”, causing pain, momentary loss of consciousness, "blood all over the car”, and need of medical treatment constituted legally sufficient evidence of use of a "dangerous instrument” (Penal Law § 160.15 [3]; § 10.00 [13]; see, People v Carey, 180 AD2d 431, 432, lv denied 79 NY2d 998). However, with respect to the second count of the indictment, charging robbery in the first degree, the testimony of the cab driver only that he was struck in the side of the head, causing him pain, some bleeding, and necessitating medical treatment, was legally insufficient since the People failed to prove beyond a reasonable doubt that a "dangerous instrument” was used as opposed to the assailant’s fist.

As the People concede, the two counts charging assault in the second degree (Penal Law § 120.05 [6]) are inclusory concurrent counts of the two counts charging robbery in the second degree (Penal Law § 160.10 [2] [a]), and should therefore be dismissed. Concur — Murphy, P. J., Sullivan, Carro, Rosenberger and Asch, JJ.