People v. Lemon

The People concede, and we agree, that the proof adduced at the trial was insufficient to sustain a conviction of robbery in the first degree (see, Penal Law § 160.15 [3]). The victim testified that she did not actually observe a weapon at the time of the commission of the robbery or immediately thereafter; moreover, no circumstantial evidence was offered from which the jury could properly infer the use or threatened immediate use of a dangerous instrument (cf. People v Pena, 50 NY2d 400, cert denied 449 US 1087). Nevertheless, there is sufficient evidence to support a conviction of the…