People v. McGee

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be reversed and the indictment dismissed, without prejudice to an application by the People, if they be so advised, to resubmit the charge of attempted robbery in the second degree.

The indictment on which defendant was tried charged him with a single count of attempted robbery in the first degree, on the theory that defendant had displayed what appeared to be a firearm in the course of the crime (Penal Law § 160.15 [4]). Defendant’s pretrial motion to dismiss the indictment was denied, notwithstanding that the court…