People v. Green

• Decision Date: 15 February 1977
• Citation: 56 A.D.2d 610,391 N.Y.S.2d 655
• Parties: The PEOPLE, etc., Respondent, v. Lenwood GREEN, a/k/a Al Brown, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 655

391 N.Y.S.2d 655

56 A.D.2d 610

The PEOPLE, etc., Respondent, v. Lenwood GREEN, a/k/a Al Brown, Appellant.

Supreme Court, Appellate Division, Second Department.

Feb. 15, 1977.

William J. Gallagher and William E. Hellerstein, New York City (Andrew E. Abraham, New York City, of counsel), for appellant.

John J. Santucci, Dist. Atty., Kew Gardens (Joan L. Craig, Brooklyn, of counsel), for respondent.

Before HOPKINS, Acting P.J., and MARTUSCELLO, COHALAN and DAMIANI, JJ.

MEMORANDUM BY THE COURT.

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.