Opinion
September 24, 1991
Appeal from the Supreme Court, New York County (Budd Goodman, J.).
While walking on 42nd Street in Manhattan in the early morning hours, complainant was approached by defendant, who ripped a chain and medallion from complainant's neck. Complainant grabbed at defendant's hands and was able to retrieve the jewelry as the police were arriving.
At trial, defense counsel moved to have attempted robbery charged as a lesser included offense. The trial court denied the motion, stating that no reasonable view of the evidence would support a conviction for attempted robbery and not for completed robbery. We agree. Despite the fact that the complainant eventually recovered his property, the taking element of larceny was satisfied. (Harrison v. People, 50 N.Y. 518.) No reasonable view of the evidence would support a finding of guilt on an attempted robbery charge and not on a completed robbery charge. (See, CPL 300.50.)
As respondent concedes, since defendant was found guilty and convicted of second degree robbery, his conviction of the lesser included offense of third degree robbery should be vacated. (CPL 300.40 [b].)
Concur — Sullivan, J.P., Rosenberger, Wallach, Kupferman and Rubin, JJ.