PEOPLE v. RIVERA (1999)

Judgment, Supreme Court, New York County (Charles Tejada, J.), rendered July 16, 1997, convicting defendant, after a jury trial, of robbery in the first degree, robbery in the second degree, grand larceny in the fourth degree, criminal possession of stolen property in the fourth degree, forgery in the second degree and criminal possession of a forged instrument in the second degree, and sentencing him, as a second felony offender, to two terms of 10 years, two terms of 21/212 to 5 years, and two terms of 2 to 4 years, with all sentences to run concurrently, unanimously affirmed.

The court properly declined to submit robbery in the third degree as a lesser included offense of robbery in the first degree, because no reasonable view of the evidence could support a finding that defendant used force other than a knife to steal the complainant's car.   Although the complainant may have had difficulty in describing the type of knife used, he clearly testified that defendant held a blade against his throat.   Furthermore, no factual issue was raised at trial as to the type of force used, as opposed to the issue of whether force was used at all.

MEMORANDUM DECISION.