People v. Smith

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Murray, J.), rendered October 19, 1982, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence.

Ordered that the judgment is modified, on the law by reducing the conviction from robbery in the second degree to robbery in the third degree; as so modified, the judgment is affirmed. The facts have been considered and are determined to be established.

As we pointed out in our decision on the appeal by the codefendant (see, People v Jones, 118 AD2d 658), in this case, in which the question of whether the evidence was legally sufficient to establish that the complainant suffered physical injury within the meaning of Penal Law § 160.10 (2) (a) and § 10.00 (9) was a close one and, under the circumstances, the trial court’s erroneous instruction that a "laceration” or "cut” was sufficient to establish physical impairment may well have led to an improper verdict.

Rather than order a new trial, however, since the defendant *692has already served his sentence, and since we find that there was overwhelming proof to establish the lesser crime of robbery in the third degree, we modify the conviction by reducing it to that lesser crime. Mollen, P. J., Mangano, Brown and Lawrence, JJ., concur.