Opinion
Argued October 15, 1987
Decided November 24, 1987
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Martin Rettinger, J.
Karen M. Kalikow, Philip L. Weinstein and Andrew C. Fine for appellant.
Robert M. Morgenthau, District Attorney (Gino A. Zonghetti and Mark Dwyer of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
Defendant appeals his conviction after a jury trial of two counts of robbery in the first degree (Penal Law § 160.15, [4]) and one count of robbery in the second degree (Penal Law § 160.10), claiming the trial court erred in denying his request for a charge of criminal possession of stolen property in the third degree (Penal Law former § 165.40 [now § 165.50]) as a lesser included offense of robbery. Criminal possession of stolen property in the third degree requires the possession, or the exercise of dominion or control, over tangible property (Penal Law § 10.00); the definitions of robbery in the first and second degrees are not so limited. Because the "theoretical impossibility" test in the definition of a lesser included offense cannot be met, the trial court properly refused defendant's request (People v Glover, 57 N.Y.2d 61; see, People v Wheeler, 67 N.Y.2d 960). There is, therefore, no need to consider whether a reasonable view of the evidence would support a finding that the defendant committed criminal possession of stolen property in the third degree but not robbery in the first or second degree (see, CPL 300.50; People v Glover, 57 N.Y.2d 61, 63, supra).
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.
Order affirmed in a memorandum.