PEOPLE v. BETHEA (2005)

Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., respondent, v. Rudolph BETHEA, appellant.

Decided: December 19, 2005

DAVID S. RITTER, J.P., REINALDO E. RIVERA, ROBERT A. SPOLZINO, and JOSEPH COVELLO, JJ.

Lynn W.L. Fahey, New York, N.Y. (Jonathan M. Kratter and Warren S. Landau of counsel), for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Johnnette Traill, and Jennifer Hagan of counsel; Brandon Clar on the brief), for respondent.

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Lewis, J.), rendered January 10, 2002, convicting him of robbery in the second degree and criminal possession of stolen property in the third degree, upon a jury verdict, and imposing sentence.

ORDERED that the judgment is reversed, on the law, and a new trial is ordered.

The Supreme Court erred in denying the defendant's request to charge attempted petit larceny as a lesser-included offense of robbery in the second degree. There was a reasonable view of the evidence that would have supported a finding that the defendant committed the lesser offense but did not commit the greater (see CPL 300.50; People v. Glover, 57 N.Y.2d 61, 453 N.Y.S.2d 660, 439 N.E.2d 376; People v. Bailey, 18 A.D.3d 666, 795 N.Y.S.2d 665, lv. denied 5 N.Y.3d 759, 801 N.Y.S.2d 253, 834 N.E.2d 1263; People v. Brown, 269 A.D.2d 539, 703 N.Y.S.2d 739).

In light of our determination, the defendant's remaining contention need not be reached.

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