Appellate Division of the Supreme Court of New York, 1981

People v. Gonzales

People v. Gonzales
Appellate Division of the Supreme Court of New York · Decided February 23, 1981
80 A.D.2d 647; 436 N.Y.S.2d 1012; 1981 N.Y. App. Div. LEXIS 10350
People v. Gonzales

Opinion of the Court

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered April 17, 1980, convicting him of murder in the second degree (felony murder) and robbery in the first degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reducing the conviction of robbery in the first degree to one of attempted robbery in the first degree and vacating the sentence imposed thereon. As so modified, judgment affirmed, and case remitted to Criminal Term for resentencing on the reduced conviction. The evidence at trial, both direct and circumstantial, was insufficient to establish that property was actually taken from the deceased, a necessary prerequisite for a conviction of robbery in the first degree (Penal Law, § 160.15). Although this conviction thus cannot stand, the evidence presented did establish the crime of attempted robbery in the first degree. We have considered defendant’s other contentions and find them to be without merit. Gibbons, J. P., Rabin, Gulotta and Margett, JJ., concur.

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