People v. Clark

Judgment unanimously reversed, on the law and new trial granted. Memorandum: The court erred in denying the request of the District Attorney, joined in by the defendant, for a charge that under the indictment for robbery, second degree (Penal Law, § 160.10, subd 2, par [a]), the jury, if they should find that the People had not proved that defendant acted with intent to rob the victim, could find him guilty of assault, third degree (Penal Law, § 120.00, subd 1). In this case there was direct evidence that defendant assaulted the victim. There was, however, no direct evidence that the defendant robbed or participated in the robbery of the victim, and the circumstantial evidence of the robbery suffered from lack of proof that defendant took anything from the victim. Under such circumstances, the requested charge should have been given (People v Cole, 43 AD2d 324). We find no merit in the claim that the court erred in denying defendant youthful offender treatment. (Appeal from judgment of Erie County Court— robbery, second degree.) Present—Marsh, P. J., Moule, Hancock, Jr., Goldman and Witmer, JJ.