I would affirm the judgment.- At trial, Preston Partin, the victim of the crimes charged against *128the defendant, testified in pertinent part that en. route to a drugstore to obtain medical supplies for his ailing wife, he was accosted by defendant and another man. Possessed of sticks and knives, defendant and his accomplice told Partin to “ keep walking ” and took him to the roof of a nearby building, where he was struck with “heavy” sticks approximately 40 inches long. Having taken $89 and a watch from the witness through these means, the defendant and his accomplice left. This criminal activity gave rise to a five-count indictment wherein defendant and his accomplice were charged as follows: (1) Robbery in the first degree in that they ‘ ‘ on or about March 26, 1971 forcibly stole certain property from Preston Partin having an aggregate value not in excess of $250 * * * and in the course of the commission of the crime and of the immediate flight therefrom, they used and threatened the immediate use of a dangerous instrument, to wit, a knife and a stick”, (2) Grand larceny in the third degree in that they “on or about March 26, 1971 stole from the person of Preston Partin certain property having an aggregate value not in excess of $250 ”, %3) Possessing a weapon, dangerous instrument and appliance in that they “on or about March 26, 1971 carried and possessed a knife and a stick with intent to use the same unlawfully against another ”, (4) Robbery in the second degree and (5) Assault in the second degree. The jury returned a verdict finding defendant guilty of all counts except the fifth count charging assault.
At trial, defendant gave the following version of the circumstances involving Partin on March 26, 1971: At about 3:00 a.m., Partin drove up to a group of people, including defendant, and inquired if anyone had a television set to sell. Although he had no television, defendant entered Partin’s car and told Partin that for $25 he could get Partin a television set by reclaiming his (defendant’s) set from a person to whom defendant had pawned it. Having thus obtained $25 from Partin, defendant left the car and went up to the roof of a nearby building with the intention of absconding by crossing over and exiting from the roof of another building but was prevented from doing so by closed doors. Hearing people ascending the stairs, defendant hid behind the chimney and observed Partin and another enter onto the roof. When Partin and his companion went to the far end of the roof, defendant went back down the stairs and left.
At the trial’s conclusion, defense counsel requested that the court charge petit larceny as a lesser included crime within the *129ambit of the second count of the indictment charging grand larceny in the third degree. At the same time, defense counsel maintained that the jury could not convict defendant of ‘ ‘ larceny by false promise ” which is the crime defendant “ claims to have committed”. This assertion by counsel was made in relation to the prosecutor’s observation that under prior law the People had to select, plead and prove a particular theory of larceny in terms of the common-law forms of theft: larceny by trespassory taking, larceny by trick, embezzlement and false pretenses. However, section 155.05 of the Penal Law defines larceny very broadly, in terms of a wrongful taking of property with intent to deprive the owner of the use and beiiefit thereof or to appropriate the .same to the use of the taker or another. The court, in accordance with defense counsel’s wishes, granted the latter’s request to charge the crime of petit larceny as a lesser included crime.
Perusal of the charge discloses that the court informed the jury that the “ defense rests * * * on the claim that the defendant committed a crime other than those alleged in the indictment ” and that the People bear the burden of proving ‘ ‘ beyond a reasonable doubt that the accused participated in the commission of the crime alleged in the indictment” and further, that “ the defendant claims that he committed a different larceny than that charged in the indictment.” (Emphasis supplied.) The court clearly instructed the jury that the crime which defendant asserted he committed was not being submitted to them as a crime includable within the indictment and for which defendant could be found guilty, but was to be considered on the issue of credibility and as a defense to the charges delineated in the indictment. The court did charge petit larceny as a lesser included crime within the ambit of the grand larceny count. At the conclusion of the charge, defense counsel in response to the court’s inquiry as to “ any exceptions, or any requests ” stated his belief that the court was going to charge petit larceny specifically in terms of false promise, rather than petit larceny in simple and general terms. The court reiterated its position that such crime is not a lesser included offense and counsel acknowledged that it is not within the indictment. CPL 300.50 (subd. 2) states that the court’s failure to submit a lesser included offense in the absence of a request by either party to do so, does not constitute error.
The key to resolving the issue of whether the larceny which defendant testified to (larceny by false pretenses) is a lesser included crime under the circumstances of this case is to deter-
*130mine the nature of the crime charged in the indictment. False pretense is simply an evidentiary allegation relevant to the manner used to commit the crime charged. The indictment in and of itself is not ¡sufficient to charge larceny by false pretenses as the larceny charge (second count) specifically asserts that property was taken from the person. “ An indictment charging larceny generally is supported by proof of any conduct constituting larceny as defined by ¡section 155.05 of the Penal Law, except where property is taken from the person or obtained by extortion ” (People v. Farruggia, 41 A D 2d 894 [4th Dept., 1973]). Where property is taken from the person, it is required that the indictment designate the particular manner in which the property was stolen or the particular theory of larceny involved (Penal Law, § 155.45). The larceny charged is patently theft “ from the person ” and analysis of the allegations of the indictment shows this theft to have been accomplished by utilization of dangerous instruments, to wit, a knife and a .stick. Indicted for one crime, a defendant cannot be convicted of another crime unless the elements of the latter are fully embraced in the former or are necessarily averred in the indictment, and proved upon trial. It is beyond cavil that, according to the indictment, the larceny was committed by stealing from the person of Preston Partin, without his consent, certain property having an aggregate value not in excess of $250. To view defendant’s asserted defense of larceny by false pretenses ¡as a lesser included crime is, under these circumstances, contrary to common sense and without legal foundation.
Defendant further contends that the trial court committed reversible .error by using in its charge the phrase “ feel in your hearts and conscience ” in the course of defining the reasonable doubt standard. Utilization of this terminology is regrettable and is to be avoided. However, this single lapse, viewed in the context of the whole charge pertaining to the reasonable doubt standard, does not constitute reversible error. The trial court did convey to the jury by numerous statements in its charge the proper meaning of the term ‘ ‘ reasonable doubt ’ ’. Indeed, the use of the objectionable phrase occurs in a context favorable to the defendant, as follows: “If, after carefully considering the evidence as a result of reason and judgment, and because of the evidence in the case, or lack of evidence, you feel in your hearts and conscience that this defendant is not guilty under the law as explained to you, or, if you entertain a reasonable doubt as to his guilt, then there exists a reasonable *131doubt, and you should give, the defendant the benefit of that doubt, and acquit ”.
Similarly, defendant’s assertion that the trial court committed reversible error in the charge by repeatedly advising the jury to disregard defendant’s testimony if they did not find it credible must be viewed in the context of the entire charge. When so viewed, it must be concluded that no reversible error occurred. The jurors were fully and clearly apprised of their function as sole judges of the facts and the court clearly conveyed that it took no position and had no opinion with respect to credibility. Defendant’s remaining contentions are patently without merit.
Kupferman and Murphy, JJ., concur with Tilzer, J.; Nunez, J. P., and Lupiano, J., dissent in an opinion by Lupiano, J.
Judgment, Supreme Court, New York County rendered on May 25, 197,2, reversed, on the law, and a new trial directed.