Judges： Accordance, Centra, Lindley, Modify, Scudder, Troutman, Vote, Whalen, Who
Filed Date： 3/25/2016
Status： Precedential
Modified Date： 11/1/2024
Centra and Lindley, JJ.
(dissenting). We respectfully dissent in appeal No. 2. Although we agree with the majority that the verdict with respect to robbery in the second degree under Penal Law § 160.10 (2) (a) is against the weight of the evidence *1670because the People failed to prove beyond a reasonable doubt that the victim sustained a physical injury during the commission of the crime or defendant’s immediate flight therefrom, we do not agree that the indictment should be dismissed. Instead, in our view, the conviction should be reduced to the lesser included offense of robbery in the third degree (§ 160.05). For the reasons stated in the concurrence in People v Heatley (116 AD3d 23, 32-39 [2014], appeal dismissed 25 NY3d 933 [2015]), we see no reason in law or logic that a conviction may not in a proper case be reduced to a lesser included offense upon a determination that the verdict is against the weight of the evidence with respect to a particular element of the charged crime (see e.g. People v Santiago, 97 AD3d 704, 706-707 [2012], affd 22 NY3d 740 [2014]), just as we reduce a conviction that is not based on legally sufficient evidence.
Present—Whalen, P.J., Centra, Lindley, Troutman and Scudder, JJ.