People v. Neal

118 A.D.2d 815, 500 N.Y.S.2d 172, 1986 N.Y. App. Div. LEXIS 54663

Opinion

— Appeal by the defendant from a judgment of the Supreme Court, Kings County (Juviler, J.), rendered June 11, 1982, convicting him of robbery in the first degree (two counts), upon a jury verdict, and imposing sentence.

Judgment affirmed.

The trial court’s refusal to charge robbery in the third degree as a lesser included offense of robbery in the first degree was erroneously based on the defendant’s age (14) at the time of the offense. Submission of a lesser included offense for which a defendant is not criminally responsible because of infancy is statutorily authorized even though a guilty verdict on that count would not result in a criminal conviction (see, CPL 300.50 [5]). However, in the instant case, there was no reasonable view of the evidence which would support a finding that the defendant had committed a robbery without the use of a gun (see, People v Baskerville, 60 NY2d 374, 381; People v Cassidy, 109 AD2d 747). One of the complainants saw the gun and the other felt it against her head when the defendant threatened to shoot her.

The defendant’s other objection to the court’s charge, on the issue of reasonable doubt, is unpreserved for our review (see, CPL 470.05 [2]).

There is no sound reason to disturb the sentence imposed. Lazer, J. P., Bracken, Brown and Kooper, JJ., concur.