| People v Hall |
| 2010 NY Slip Op 09533 [79 AD3d 1068] |
| December 21, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, Respondent, v MichaelHall, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Sharon Y. Brodt,and Danielle S. Fenn of counsel), for respondent.
Motion by the appellant for leave to reargue an appeal from a judgment of the Supreme Court,Queens County (Latella, J.), rendered November 29, 2007, which was determined by decision andorder of this Court dated June 1, 2010.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
Ordered that the motion is granted, and upon reargument, the decision and order of this Courtdated June 1, 2010 (see People v Hall,74 AD3d 837 [2010], lv granted 15 NY3d 852 [2010]), is recalled and vacated, and thefollowing decision and order is substituted therefor:
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Latella, J.),rendered November 29, 2007, convicting him of robbery in the first degree, robbery in the seconddegree (two counts), and criminal possession of a weapon in the fourth degree, upon a jury verdict, andimposing sentence.
Ordered that the judgment is modified, on the law, by vacating the convictions of robberyin the first degree, in violation of Penal Law § 160.15 (3), as charged in count one of theindictment, and criminal possession of a weapon in the fourth degree, in violation of Penal Law §265.01 (2), as charged in count four of the indictment, vacating the sentences imposed thereon,and dismissing those counts of the indictment; as so modified, the judgment is affirmed.
The defendant's convictions of robbery in the first degree (see Penal Law § 160.15[3]) and criminal possession of a weapon in the fourth degree (see Penal Law § 265.01[2]) must be vacated, as the People failed to present legally sufficient evidence that an electronic stungun which was used by the defendant, was a "dangerous instrument" (Penal Law § 160.15 [3]).Under the circumstances here, the People failed to offer evidence that a device of this type "under thecircumstances in which it [was] used, attempted to be used or threatened to be used, [was] readilycapable of causing death or other [*2]serious physical injury" (PenalLaw § 10.00 [13]; see People v Maio Ni, 293 AD2d 552 [2002]; People vNelson, 292 AD2d 397, 397 [2002]; cf. People v MacCary, 173 AD2d 646 [1991]).Accordingly, the counts of the indictment charging robbery in the first degree and criminal possession ofa weapon in the fourth degree must be dismissed.
Contrary to the defendant's contention, he was not entitled to a missing witness charge (seegenerally People v Savinon, 100 NY2d 192, 196 [2003]; People v Gonzalez, 68 NY2d424, 427 [1986]; see also People vEvans, 56 AD3d 572 [2008]; People v Marino, 21 AD3d 430, 432 [2005], cert denied 548US 908 [2006]).
The defendant's remaining contentions are without merit. Mastro, J.P., Eng, Leventhal and Roman,JJ., concur.