Opinion
November 10, 1986
Appeal from the Supreme Court, Kings County (Ramirez, J.).
Ordered that the judgment is modified, on the law, by reducing the conviction of robbery in the first degree to robbery in the third degree, and vacating the sentence imposed on that count. As so modified, the judgment is affirmed and the matter is remitted to the Supreme Court, Kings County, for resentencing on the conviction of robbery in the third degree.
The People concede, and we agree, that the proof adduced at the trial was insufficient to sustain a conviction of robbery in the first degree (see, Penal Law § 160.15). The victim testified that she did not actually observe a weapon at the time of the commission of the robbery or immediately thereafter; moreover, no circumstantial evidence was offered from which the jury could properly infer the use or threatened immediate use of a dangerous instrument (cf. People v Pena, 50 N.Y.2d 400, cert denied 449 U.S. 1087). Nevertheless, there is sufficient evidence to support a conviction of the lesser included charge of robbery in the third degree (see, Penal Law § 160.05).
We concur, furthermore, with the finding of the hearing court that the efforts of the police in attempting to locate the defendant were sufficient to meet the statutory standard of "due diligence" (CPL 30.30 [c]).
The defendant's remaining contention on appeal is unpreserved for our review and, in any event, is without merit. Thompson, J.P., Bracken, Eiber and Spatt, JJ., concur.