Opinion
Argued January 6, 1978
Decided February 7, 1978
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, ERNEST L. COLUCCI, J.
Joseph A. Shifflett and Nathaniel A. Barrell for appellant.
Edward C. Cosgrove, District Attorney (Judith Blake Manzella of counsel), for respondent.
MEMORANDUM.
Order modified to the extent of reversing the conviction for robbery in the first degree under count one of the indictment and a new trial ordered, and otherwise affirmed.
The trial court should have submitted on request of defense counsel the lesser included offense of assault in the third degree. The transaction between defendant and Mrs. Powers, his landlady, was not a typical robbery. The altercation started over the effort by defendant, then under the influence of alcohol, to make a telephone call over his landlady's telephone. He returned to her living room to upbraid her, flashed a knife, threatened to kill her, and then, according to Mrs. Powers, demanded all her money. The jury might well have chosen to accept, beyond a reasonable doubt, only the facts prior to the demand for money, and to conclude, therefore, that only an assault had occurred, the victim sustaining her injury of a cut hand as a result of her effort to disarm defendant, as she testified (see CPL 300.50, subds 1, 2; People v Asan, 22 N.Y.2d 526, 532; see, generally, People v Greer, 42 N.Y.2d 170, 173-174; People v Johnson, 39 N.Y.2d 364, 367).
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur.
Order modified and the case remitted to Erie County Court for a new trial in accordance with the memorandum herein and, as so modified, affirmed.