Opinion
April 28, 1986
Appeal from the Supreme Court, Kings County (Lombardo, J.).
Judgment modified, on the law, by reducing the defendant's conviction of robbery in the second degree to one of robbery in the third degree, vacating the sentence imposed thereon, and vacating the defendant's conviction of assault in the second degree and the sentence imposed thereon, and dismissing that count of the indictment. As so modified, judgment affirmed, and matter remitted to the Supreme Court, Kings County, for resentencing on the conviction of robbery in the third degree.
The evidence was sufficient to establish the defendant's guilt beyond a reasonable doubt of rape in the first degree. However, insofar as the robbery and assault counts are concerned, the evidence was legally insufficient to establish that the complainant suffered physical injury within the meaning of Penal Law § 10.00 (9) (see, Matter of Pernell M., 98 A.D.2d 776, 776-777; People v. Reed, 83 A.D.2d 566). Since the evidence was sufficient to establish the defendant's guilt of robbery in the third degree, we have reduced the robbery in the second degree conviction to one for robbery in the third degree. Mollen, P.J., Lazer, Kunzeman and Kooper, JJ., concur.