Summary
finding sufficient evidence of physical force where defendant reached out of a moving train's window and attempted to steal the purse from a woman standing on the platform
Summary of this case from McCargo v. CostelloOpinion
Argued December 14, 1979
Decided January 15, 1980
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, HYMAN BARSHAY, J.
Donald S. Morenstein and Stephen Ross for appellant.
Eugene Gold, District Attorney (Beth S. Lasky of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed. Since the jury could have found that the defendant's method of operation resulted in this instance in the use of the force of the movement of the train upon the victim to overcome her resistance to the taking of her purse, there was sufficient evidence that his act constituted attempted robbery rather than simple larceny (Penal Law, § 160.00). Furthermore, there was evidence that the victim's death was caused either "in the course of and in furtherance of" the attempted robbery or of "immediate flight therefrom" (Penal Law, § 125.25, subd 3). There was, therefore, a sufficient predicate for the felony murder conviction.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.
Order affirmed in a memorandum.