People v. Lemon

The People concede, and we agree, that the proof adduced at the trial was insufficient to sustain a conviction of robbery in the first degree (see, Penal Law § 160.15 [3]). The victim testified that she did not actually observe a weapon at the time of the commission of the robbery or immediately thereafter; moreover, no circumstantial evidence was offered from which the jury could properly infer the use or threatened immediate use of a dangerous instrument (cf. People v Pena, 50 NY2d 400, cert denied 449 US 1087). Nevertheless, there is sufficient evidence to support a conviction of the lesser included charge of robbery in the third degree (see, Penal Law § 160.05).

We concur, furthermore, with the finding of the hearing court that the efforts of the police in attempting to locate the defendant were sufficient to meet the statutory standard of "due diligence” (CPL 30.30 [4] [c]).

The defendant’s remaining contention on appeal is unpre*680served for our review and, in any event, is without merit. Thompson, J. P., Bracken, Eiber and Spatt, JJ., concur.