Opinion
April 12, 1994
Appeal from the Supreme Court, Bronx County (Phylis Skloot Bamberger, J.).
Viewed in a light most favorable to the People (People v Contes, 60 N.Y.2d 620, 621), the testimony of the cab driver victim with respect to the first count of the indictment that he was struck in the back of the head with an unseen, object but felt, "blunt object", causing pain, momentary loss of consciousness, "blood all over the car", and need of medical treatment constituted legally sufficient evidence of use of a "dangerous instrument" (Penal Law § 160.15; § 10.00 [13]; see, People v Carey, 180 A.D.2d 431, 432, lv denied 79 N.Y.2d 998). However, with respect to the second count of the indictment, charging robbery in the first degree, the testimony of the cab driver only that he was struck in the side of the head, causing him pain, some bleeding, and necessitating medical treatment, was legally insufficient since the People failed to prove beyond a reasonable doubt that a "dangerous instrument" was used as opposed to the assailant's fist.
As the People concede, the two counts charging assault in the second degree (Penal Law § 120.05) are inclusory concurrent counts of the two counts charging robbery in the second degree (Penal Law § 160.10 [a]), and should therefore be dismissed.
Concur — Murphy, P.J., Sullivan, Carro, Rosenberger and Asch, JJ.