People v. Bogan

Appeal by the defendant from a judgment of the Supreme Court, Kings County (Curci, J.), rendered November 7, 1985, 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 defendant’s conviction of robbery in the second degree to one of robbery in the third degree and vacating the sentence imposed thereon. As so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Kings County, for sentencing on the conviction of robbery in the third degree.

The evidence was legally insufficient to establish that the complainant suffered physical injury within the meaning of Penal Law § 10.00 (9) in order to support a conviction of robbery in the second degree (see, Matter of Philip A., 49 NY2d 198; People v Suarez, 119 AD2d 839). Since the evidence was sufficient to establish the defendant’s guilt of the lesser included offense of robbery in the third degree, we have reduced the robbery in the second degree conviction to one for robbery in the third degree.

We note that there is no merit to the defendant’s assertion that he was deprived of the effective assistance of counsel at trial (see, People v Baldi, 54 NY2d 137; People v Andrew S., 108 AD2d 935). Niehoff, J. P., Kunzeman, Kooper and Sullivan, JJ., concur.