People v. Smith

Judgment modified on the law and as modified affirmed, in accordance with the following memorandum: The evidence at trial was legally insufficient to sustain defendant’s conviction for robbery in the first degree. In order to sustain a conviction for robbery in any *880 degree, it must be shown that, in the course of committing a larceny, defendant used or threatened the immediate use of physical force upon another person for the purpose of either preventing or overcoming resistance to the taking of the property or the retention thereof or for the purpose of compelling the owner to deliver up the property (see, Penal Law § 160.00; People v Nixon, 156 AD2d 144 , lv granted 75 NY2d 873 ; People v Chessman, 75 AD2d 187 , appeal dismissed 54 NY2d 1016 ; People v Lopez, 58 AD2d 516 ; 2 LaFave and Scott, Substantive Criminal Law § 8.11 [e], at 453-454). Defendant did not threaten the use of force for the purpose of compelling the owner to deliver up the property or for the purpose of preventing or overcoming resistance to the taking or retention of the property. The judgment is modified therefore by reversing the conviction of robbery in the first degree.

We also reverse the conviction of unauthorized use of a motor vehicle in the first degree. That crime requires that defendant use the vehicle "with the intent to use the same in the course of or the commission of [certain offenses]” (Penal Law § 165.08). The indictment charged defendant with the unauthorized use of the automobile with the intent of using it in the course of the commission of a robbery. Since we have determined that defendant did not commit a robbery, he cannot be guilty of the crime of unauthorized use, as charged.

We have considered defendant’s remaining contentions and have found them to be without merit.

All concur, Doerr, J. P., not participating. (Appeal from judgment of Erie County Court, La Mendola, J.—rape, first degree.) Present—Doerr, J. P., Boomer, Lawton, Davis and Lowery, JJ.