People v. Stokes

Judgment, Supreme Court, New York County (Michael Obús, J.), rendered February 14, 1995, convicting defendant, after a jury trial, of robbery in the second and third degrees, and sentencing him, as a second violent felony offender, to concurrent terms of 5 to 10 years and 3V2 to 7 years, respectively, unanimously modified, on the law, to the extent of vacating defendant’s conviction for robbery in the third degree, and otherwise affirmed.

The evidence was legally sufficient to establish that defendant was “aided by another person actually present” so as to support a conviction for robbery in the second degree as defined in Penal Law § 160.10 (1). The police observed a codefendant point out the complainant as a suitable victim, whereupon, in response to a hand signal from defendant, this codefendant and an unapprehended accomplice took up a position ap*19proximately 10 feet away, ready to render immediate assistance to defendant if needed. Accordingly, their presence posed a sufficient threat of additional violence so as to satisfy the aggravating element necessary to raise the offense to second-degree robbery (see, People v Hedgeman, 70 NY2d 533, 535; People v Dennis, 146 AD2d 708, affd 75 NY2d 821).

As the People concede, defendant’s conviction for the lesser included offense of robbery in the third degree should have been dismissed. Concur — Williams, J. P., Mazzarelli, Ellerin, Wallach and Rubin, JJ.