Opinion
February 23, 1976
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered January 10, 1975, convicting him of robbery in the second degree, upon a jury verdict, and imposing sentence. Judgment affirmed. The trial court charged the jury, without exception, "that you may not find the defendant guilty of robbery in the first degree and robbery in the second degree. You may either find him guilty of robbery in the first degree or you must acquit him, or you may find him guilty of robbery in the second degree or you must acquit him. So that you will have, Mr. Foreman, and Members of the Jury, three possible charges before you: Robbery in the first degree, robbery in the second degree, or acquittal." The choice of the jury in finding defendant guilty of robbery in the second degree is unassailable under the facts in this record. Hopkins, Acting P.J., Cohalan, Rabin, Shapiro and Titone, JJ., concur.