Opinion
April 10, 1989
Appeal from the County Court, Orange County (Meehan, J.).
Ordered that the judgment is modified, on the law, by reducing the conviction of robbery in the second degree under count two of the indictment to 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 County Court, Orange County, for resentencing on the defendant's conviction under count two of the indictment.
We find that the proof adduced at trial was insufficient to establish that the complainant suffered substantial pain or physical impairment within the meaning of Penal Law § 10.00 (9) and § 160.10 (2) (a) with regard to the conviction of robbery in the second degree under count two of the indictment (see, People v. Greene, 70 N.Y.2d 860; People v. Rojas, 61 N.Y.2d 726; People v Chandler, 120 A.D.2d 542). Under the circumstances, however, there is sufficient evidence to support a conviction of the lesser included offense of robbery in the third degree (see, Penal Law § 160.05).
The defendant's remaining contentions are either unpreserved for appellate review or without merit. Kunzeman, J.P., Kooper, Sullivan and Balletta, JJ., concur.