People v. Stanback

Judgment unanimously modified on the law and as modified affirmed and matter remitted to Supreme Court for resentencing, in accordance with the following memorandum: We agree with defendant that, under the circumstances of this case, the People’s proof was insufficient to establish that defendant was "aided by another person actually present” (Penal Law § 160.10 [1]) during the commission of the crimes of forcible stealing of property and attempted forcible stealing of property (see, People v Wearen, 155 AD2d 889). We, therefore, reduce the conviction of robbery in the second degree to robbery in the third degree and reduce the conviction of attempted robbery in the second degree to attempted robbery in the third degree.

We have reviewed defendant’s remaining contentions and find them to be without merit. (Appeal from judgment of Supreme Court, Monroe County, Bergin, J.—robbery, second degree.) Present—Dillon, P. J., Callahan, Doerr, Pine and Lawton, JJ.