Opinion
November 10, 1986
Appeal from the Erie County Court, Maas, J.
Present — Denman, J.P., Boomer, Pine, Lawton and Schnepp, JJ.
Judgment unanimously modified on the law and as modified affirmed, in accordance with the following memorandum: Defendant appeals her conviction of robbery in the first degree and criminal possession of a weapon in the fourth degree, both of which involved use or possession of a dangerous instrument, to wit, shoes. Although in his opening statement the District Attorney stated that he expected the elderly victim of a mugging to testify that he had been beaten with spike-heeled shoes, no prosecution witness was able to describe the shoes. Defendant said only that they were wrapped around the ankle and that they were dress shoes. A defense witness said that they were wrap-around shoes laced tight at the bottom. A dangerous instrument can be any article which, under the circumstance in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury (Penal Law § 10.00). Thus, boots qualified when they were used to kick and "stomp" a person in the head and the person sustained injuries causing a permanent coma (People v Carter, 53 N.Y.2d 113). In this case, the only injuries testified to were black and blue marks on both upper arms and a small amount of bleeding on the hands and around the face. No medical attention was required and by the time the police arrived, shortly after the incident, the victim was walking around the parking lot picking up his papers. Without a description of the shoes, and in the absence of their having actually caused serious physical injury, there was not proof beyond reasonable doubt that defendant used or had a dangerous instrument.
The jury was instructed not to consider a count of robbery in the second degree if it convicted defendant of robbery first. A new trial is granted with respect to robbery second, count two of the indictment. The judgment on count one is reduced from a conviction for robbery in the first degree to the lesser included offense of robbery in the third degree (CPL 470.15 [a]) and the defendant remanded for resentencing. The fourth count, criminal possession of a weapon in the fourth degree, is dismissed.