People v. Warren

New York Court of Appeals

People v. Warren

374 N.E.2d 126, 43 N.Y.2d 852, 403 N.Y.S.2d 215, 1978 N.Y. LEXIS 1782

DecidedFebruary 7, 1978

StatusPublished

This text of 374 N.E.2d 126 (People v. Warren) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Warren, 374 N.E.2d 126, 43 N.Y.2d 852, 403 N.Y.S.2d 215, 1978 N.Y. LEXIS 1782 (N.Y. 1978).

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Opinion

OPINION OF THE COURT

Memorandum.

Order modified to the extent of reversing the conviction for robbery in the first degree under count one of the indictment and a new ¡trial ordered, and otherwise affirmed.

The trial court should have submitted on request of defense counsel the lesser included offense of assault in the third degree. The transaction between defendant and Mrs. Powers, his landlady, was not a typical robbery. The altercation started over the effort by defendant, then under the influence of alcohol, to make a telephone call over his landlady’s telephone. He returned to her living room to upbraid her, flashed a knife, threatened to kill her, and then, according to Mrs. Powers, demanded all her money. The jury might well have chosen to accept, beyond a reasonable doubt, only the facts prior to the demand for money, and to conclude, therefore, that only an assault had occurred, the victim sustaining her [854]*854injury of a cut hand as a result of her effort to disarm defendant, as she testified (see CPL 300.50, subds 1, 2; People v Asan, 22 NY2d 526, 532; see, generally, People v Greer, 42 NY2d 170, 173-174; People v Johnson, 39 NY2d 364, 367).

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order modified and the case remitted to Erie County Court for a new trial in accordance with the memorandum herein and, as so modified, affirmed.

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OPINION OF THE COURT

Memorandum.

Order modified to the extent of reversing the conviction for robbery in the first degree under count one of the indictment and a new ¡trial ordered, and otherwise affirmed.

The trial court should have submitted on request of defense counsel the lesser included offense of assault in the third degree. The transaction between defendant and Mrs. Powers, his landlady, was not a typical robbery. The altercation started over the effort by defendant, then under the influence of alcohol, to make a telephone call over his landlady’s telephone. He returned to her living room to upbraid her, flashed a knife, threatened to kill her, and then, according to Mrs. Powers, demanded all her money. The jury might well have chosen to accept, beyond a reasonable doubt, only the facts prior to the demand for money, and to conclude, therefore, that only an assault had occurred, the victim sustaining her [854]*854injury of a cut hand as a result of her effort to disarm defendant, as she testified (see CPL 300.50, subds 1, 2; People v Asan, 22 NY2d 526, 532; see, generally, People v Greer, 42 NY2d 170, 173-174; People v Johnson, 39 NY2d 364, 367).

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order modified and the case remitted to Erie County Court for a new trial in accordance with the memorandum herein and, as so modified, affirmed.

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374 N.E.2d 126, 43 N.Y.2d 852, 403 N.Y.S.2d 215, 1978 N.Y. LEXIS 1782, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-warren-ny-1978.

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