People v. Robinson

—Appeal by defendant from a judgment of the Supreme Court, Queens County (Sherman, J.), rendered August 21, 1981, convicting him of burglary in the second degree (two counts), robbery in the second degree, assault in the second degree, and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.

Judgment modified, on the law, by reversing the convictions of assault in the second degree and criminal possession of a weapon in the fourth degree, vacating the sentences imposed thereon and dismissing those counts of the indictment. As so modified, judgment affirmed.

The evidence of defendant’s guilt of the robbery and burglary charges was overwhelming. The People’s witness Colon, who had known defendant for seven or eight years prior to the incident, testified that at or about the time the incident occurred, he heard moaning coming from the victim’s apartment, and shortly thereafter saw defendant in the brightly lit hallway outside the victim’s apartment removing a pair of gloves (despite it then being mid-July) and putting some keys in his pocket. Colon knew that defendant did not live in the building. However, there was insufficient proof of physical injury to sustain the assault charge (see, People v Reed, 83 AD2d 566).

The District Attorney concedes, and on our review of the record we agree, that the count charging defendant with criminal possession of a weapon in the fourth degree must be reversed and that count dismissed, since there was no evidence presented to show that at the time of the robbery and burglary, he possessed a weapon.

We have considered defendant’s other contentions and find them to be without merit. Bracken, J. P., Rubin, Lawrence and Eiber, JJ., concur.