People v. Rice , 81 A.D.2d 515 ( 1981 )

— Judgment, Supreme Court, Bronx County, rendered April 10, 1980 convicting defendant, on jury verdict, of robbery in the first degree (Penal Law, § 160.15), and sentencing him thereon as a second felony offender to TVz to 15 years imprisonment, is affirmed. In the opinion of the majority of this court, there is no “reasonable view of the evidence which would support a finding that the defendant committed” robbery in the third degree and did not commit robbery in the first degree (CPL 300.50, subd 1). The two prosecution witnesses who were at the scene of the robbery both testified to seeing the robber holding a gun in his hand. The victim said, “I had my eyes on the gun.” The other witness testified that the robber had in his hand a gun and a bag and that the robber said, “Don’t do nothing. I don’t want to shoot nobody.” The arresting officer, called by the defense, testified that he was approached by two men who told him of the robbery and said that the robber was armed with a gun. Nobody testified that the robber did not have a gun. The fact that no gun was found on the defendant when he was apprehended several blocks from the scene after a chase through, among other places, a vacant lot and after some other minor intervening events, is not sufficient to constitute a rational identifiable reason to reject the portions of the prosecution witnesses’ testimony that defendant “Displays what appears to be a pistol” (Penal Law, § 160.15, subd 4), and yet accept the portions that there was a robbery (People v Scarborough, 49 NY2d 364, 369-370; see, also, Peopple v Salters, 75 AD2d 901). We have considered the other errors claimed and do not believe they warrant reversal or modification. Concur — Ross, J. P., Lupiano and Silverman, JJ.