People v. Holmes

—Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered March 22, 1977, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, count one of the indictment is dismissed, and a new trial is ordered as to the remaining counts of the indictment. Count one of the indictment, under which defendant was convicted, charged defendant with robbery in the first degree in that he used or threatened the immediate use of a dangerous instrument (Penal Law, § 160.15, subd 3). That count must be dismissed. The evidence failed to show that the gun which defen*905dant is alleged to have brandished was either loaded or used. Under these circumstances, a conviction for robbery in the first degree based upon the use or threatened use of a dangerous instrument cannot stand (cf. People v Johnson, 64 AD2d 907; People v Early, 59 AD2d 912). Since the court charged the jury not to consider the remaining counts if they found defendant guilty under count one, a new trial must be had limited to the remaining counts of the indictment (see CPL 470.20). Lazer, J. P., Margett, Martuscello and Mangano, JJ., concur.