Opinion
May 30, 1997
Present — Green, J.P., Pine, Lawton, Callahan and Fallon, JJ.
Judgment unanimously affirmed. Memorandum: We reject defendant's contention that County Court erred in failing to submit robbery in the third degree and petit larceny to the jury as lesser included offenses of robbery in the first degree. At trial, defense counsel opposed the prosecutor's request that the court submit robbery in the third degree, and defendant therefore waived his present contention with respect to the charge (see, People v Adams, 205 A.D.2d 548, 649, lv denied 83 N.Y.2d 1002). Further, although petit larceny is a lesser included offense of robbery in the first degree (see, People v. Smith, 214 A.D.2d 971, lv denied 86 N.Y.2d 847), there is no reasonable view of the evidence that would support a finding that defendant stole the victim's property without the use of force (see, People v. Hickey, 162 A.D.2d 708, lv denied 76 N.Y.2d 858; People v. Bailey, 155 A.D.2d 982, lv denied 75 N.Y.2d 866; People v. White, 121 A.D.2d 762, lv denied 68 N.Y.2d 774).
The court properly admitted evidence that prosecution witnesses had been threatened by defendant ( see, People v. King, 175 A.D.2d 266, lv denied 79 N.Y.2d 828) and defendant's brother ( see, People v. Griffin, 126 A.D.2d 743, 743-744, lv denied 69 N.Y.2d 880). Defendant's motion to dismiss the indictment in furtherance of justice was properly denied as untimely ( see, People v. Field, 161 A.D.2d 660, 661) and on the ground that there is no "compelling factor, consideration or circumstance" to warrant that extraordinary relief (CPL 210.40; see, People v. Loria, 214 A.D.2d 1043, 1044; People v. Field, supra, at 661). Because the court imposed the minimum sentence authorized for a class B violent felony, there is no basis for the exercise of our authority to reduce the sentence as a matter of discretion in the interest of justice ( see, CPL 470.15[b]). (Appeal from Judgment of Erie County Court, D'Amico, J. — Robbery, 1st Degree.)