People v. Melvin , 149 A.D.2d 536 ( 1989 )

— Appeal by the defendant from a judgment of the County Court, Orange County (Meehan, J.), rendered June 1, 1983, convicting him of robbery in the second degree (two counts), upon a jury verdict, and imposing sentence.

Ordered that the judgment is modified, on the law, by reducing the conviction of robbery in the second degree under count two of the indictment to robbery in the third degree, and vacating the sentence imposed thereon; as so modified, the judgment is affirmed and the matter is remitted to the County Court, Orange County, for resentencing on the defendant’s conviction under count two of the indictment.

We find that the proof adduced at trial was insufficient to establish that the complainant suffered substantial pain or physical impairment within the meaning of Penal Law § 10.00 (9) and § 160.10 (2) (a) with regard to the conviction of robbery in the second degree under count two of the indictment (see, People v Greene, 70 NY2d 860; People v Rojas, 61 NY2d 726; People v Chandler, 120 AD2d 542). Under the circumstances, however, there is sufficient evidence to support a conviction of the lesser included offense of robbery in the third degree (see, Penal Law § 160.05).

The defendant’s remaining contentions are either unpreserved for appellate review or without merit. Kunzeman, J. P., Kooper, Sullivan and Balletta, JJ., concur.