Opinion
November 17, 1986
Appeal from the Supreme Court, Kings County (Mirabile, J.).
Ordered that the judgment is modified, on the law, by reversing the conviction of robbery in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment. As so modified, the judgment is affirmed.
The hearing court properly declined to suppress the physical evidence recovered in the defendant's apartment and the statement made to a police officer. We further conclude that the evidence, viewed in a light most favorable to the People (see, People v Contes, 60 N.Y.2d 620), established the defendant's guilt beyond a reasonable doubt with respect to the conviction of robbery in the first degree. However, we find that the evidence was legally insufficient to support a finding that the complaining witness suffered either substantial pain or an impairment of physical condition (Penal Law § 10.00). Accordingly, the conviction of robbery in the second degree (Penal Law § 160.10 [a]) cannot stand (see, Matter of Philip A., 49 N.Y.2d 198; People v McDowell, 28 N.Y.2d 373).
We have examined the defendant's remaining contention and find it to be without merit. Brown, J.P., Rubin, Lawrence and Kooper, JJ., concur.