People v. Magnum ( 2011 )

The court properly declined to submit robbery in the third degree as a lesser included offense, since there was no reasonable view of the evidence, viewed most favorably to defendant, that he committed the lesser offense but not the greater. The victim was certain that defendant displayed what appeared to be a pistol, and there was no identifiable record basis upon which the jury might have reasonably differentiated between segments of the victim’s testimony (see People v Negron, 91 NY2d 788, 792-793 [1998]; see also People v James, 11 NY3d 886 [2008]). Defendant’s alternative theory as to how the victim might have been robbed is entirely speculative.

We perceive no basis for reducing the sentence. Concur— Tom, J.E, Saxe, DeGrasse, Freedman and Román, JJ.