People v. Grant

Appeal by the People from so much of an order of the Supreme *712Court, Richmond County (Rienzi, J.), dated January 22, 2009, as granted that branch of the defendant’s omnibus motion which was to dismiss the indictment to the extent of reducing the charge of robbery in the first degree to the charge of robbery in the third degree.

Ordered that the order is affirmed insofar as appealed from.

Contrary to the People’s contention, the evidence before the grand jury was legally insufficient to establish the charge of robbery in the first degree (see CPL 210.20 [1] [b]; Penal Law § 160.15 [3]; People v Pena, 50 NY2d 400, 405-408 [1980], cert denied 449 US 1087 [1981]). The People failed to present competent evidence which, if accepted as true, established every element of the crime charged (see People v Bello, 92 NY2d 523, 525-526 [1998]; People v Moore, 185 AD2d 825, 826 [1992]; People v O’Leary, 137 AD2d 631, 631-632 [1988]; People v Lemon, 124 AD2d 679 [1986]; Penal Law § 160.15 [3]; see generally People v Ford, 11 NY3d 875, 877 [2008]).

Here, the People presented insufficient circumstantial evidence from which a grand jury could properly infer the “[u]se ... or threatened] immediate use of a dangerous instrument” in the course of committing the robbery (Penal Law § 160.15 [3]; § 10.00 [13]; People v Bello, 92 NY2d at 525-526; see People v Peralta, 3 AD3d 353, 354-355 [2004]). Under the circumstances of this case, the defendant’s written threat, without more, was insufficient to establish that the defendant used or threatened the use of a dangerous instrument in his actual possession and readily capable of causing death or other serious physical injury (see Penal Law § 160.15 [3]; § 10.00 [13]; People v Pena, 50 NY2d at 405-408; People v Moore, 185 AD2d at 826; People v O’Leary, 137 AD2d at 631-632; People v Lemon, 124 AD2d 679 [1986]). Accordingly, the Supreme Court properly reduced the charge of robbery in the first degree to the charge of robbery in the third degree (see Penal Law § 160.15 [1]). Balkin, Hall and Austin, JJ., concur.