PEOPLE v. BACHMANN (1997)

The People contend that County Court erred in dismissing the charge of robbery in the third degree on the ground that the evidence was insufficient pursuant to CPL 210.20(1)(b).   We agree.   Competent evidence presented to the Grand Jury establishes that defendant stole a package of saw blades from Sears Department Store.   When the store's loss prevention agent stopped him outside the store, defendant pushed and punched the agent in the chest and ran across the parking lot.   When defendant tripped and fell to the ground while running, he told the approaching agent and another store employee to get away from him and that he had a gun.   Defendant possessed the saw blades when taken into custody.

A person commits robbery in the third degree when he forcibly steals property (Penal Law § 160.05), i.e., “when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of * * * [p]reventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking” (Penal Law § 160.00[1] ).   Contrary to the court's determination, the evidence presented to the Grand Jury, when viewed in the light most favorable to the People (see, People v. Swamp, 84 N.Y.2d 725, 730, 622 N.Y.S.2d 472, 646 N.E.2d 774), establishes that defendant's use of physical force and threatened use thereof on the store employees was for the purpose of retaining the property stolen by defendant (see, People v. Letterlough, 203 A.D.2d 589, 610 N.Y.S.2d 614, appeal dismissed 84 N.Y.2d 862, 618 N.Y.S.2d 4, 642 N.E.2d 323, lv. denied 84 N.Y.2d 908, 621 N.Y.S.2d 526, 645 N.E.2d 1226;  People v. Crespo, 158 A.D.2d 466, 551 N.Y.S.2d 57, lv. denied 76 N.Y.2d 733, 558 N.Y.S.2d 895, 557 N.E.2d 1191;  cf., People v. Kellam, 189 A.D.2d 1008, 592 N.Y.S.2d 864;  People v. Nixon, 156 A.D.2d 144, 145-146, 548 N.Y.S.2d 194, appeal dismissed 76 N.Y.2d 870, 560 N.Y.S.2d 984, 561 N.E.2d 884).

Order insofar as appealed from unanimously reversed on the law, motion denied, count one of the indictment reinstated and matter remitted to Monroe County Court for further proceedings on the indictment.

MEMORANDUM: