People v. Brown

Court: New York Court of Appeals
Date filed: 1987-11-24
Citations: 70 N.Y.2d 857, 523 N.Y.S.2d 456, 517 N.E.2d 1342, 1987 N.Y. LEXIS 19066
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Combined Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

Defendant appeals his conviction after a jury trial of two counts of robbery in the first degree (Penal Law § 160.15 [2], [4]) and one count of robbery in the second degree (Penal Law § 160.10 [1]), claiming the trial court erred in denying his request for a charge of criminal possession of stolen property in the third degree (Penal Law former § 165.40 [now § 165.50]) as a lesser included offense of robbery. Criminal possession of stolen property in the third degree requires the possession, or the exercise of dominion or control, over tangible property (Penal Law § 10.00 [8]); the definitions of robbery in the first and second degrees are not so limited. Because the "theoretical impossibility” test in the definition of a lesser included offense cannot be met, the trial court properly refused defendant’s request (People v Glover, 57 NY2d 61; see, People v Wheeler, 67 NY2d 960). There is, therefore, no need to consider whether a reasonable view of the evidence would support a finding that the defendant committed criminal possession of stolen property in the third degree but not robbery in the first or second degree (see, CPL 300.50 [1]; People v Glover, 57 NY2d 61, 63, supra).

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone, Hancock, Jr., and Bellacosa concur.

Order affirmed in a memorandum.