People v McMillan

People v McMillan 2007 NY Slip Op 06068 [42 AD3d 345] July 12, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, September 12, 2007

The People of the State of New York, Respondent,
v
Philip McMillan, Appellant.

—[*1] John J. Janiec, New York, for appellant.

Robert T. Johnson, District Attorney, Bronx (Bryan C. Hughes of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Megan Tallmer, J.), rendered October 19, 2005, convicting defendant, after a jury trial, of robbery in the first degree, and sentencing him to a term of 1½ to 4½ years, unanimously reversed, as a matter of discretion in the interest of justice, to the extent of vacating the conviction and dismissing that count of the indictment, and the matter remanded for further proceedings in accordance with this decision.

As the People concede, this robbery conviction was based on legally insufficient evidence, since the evidence did not establish the underlying larceny (People v Bleakley, 69 NY2d 490, 495 [1987]). However, pursuant to the court's instruction, upon convicting defendant of robbery the jury stopped deliberating, and did not consider the first-degree assault count. Accordingly, defendant may be retried on that count (see People v Charles, 78 NY2d 1044, 1047 [1991]).

In view of this disposition, we decline to reach the remaining issues raised on appeal, which involve matters that would be addressed to the sound discretion of the retrial court should they arise again. Concur—Tom, J.P., Andrias, Buckley, Gonzalez and Malone, JJ.