Argued January 30, 2003.
February 24, 2003.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Rosengarten, J.), rendered December 1, 1999, convicting him of attempted robbery in the first degree, attempted robbery in the second degree, and criminal possession of a weapon in the fourth degree, upon a jury verdict, and imposing sentence.
Lynn W. L. Fahey, New York, N.Y. (Warren S. Landau of counsel), for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Nicoletta J. Caferri, and William C. Milaccio of counsel), for respondent.
Before: NANCY E. SMITH, J.P., GLORIA GOLDSTEIN, SANDRA L. TOWNES, WILLIAM F. MASTRO, JJ.
ORDERED that the judgment is modified, on the law and as a matter of discretion in the interest of justice, by vacating the convictions of attempted robbery in the first degree and criminal possession of a weapon in the fourth degree, vacating the sentences imposed thereon, and dismissing those counts of the indictment; as so modified, the judgment is affirmed.
The People concede and we agree with the defendant that his convictions of attempted robbery in the first degree (see Penal Law § 160.15) and criminal possession of a weapon in the fourth degree (see Penal Law § 265.01) must be vacated, as the People failed to present legally sufficient evidence that the pepper spray he utilized was a "dangerous instrument" (Penal Law § 10.00). There was no evidence offered that the can of pepper spray "under the circumstances in which it [was] used, attempted to be used or threatened to be used, [was] readily capable of causing death or other serious physical injury" (Penal Law § 10.00; see People v. Ni, 293 A.D.2d 552; People v. Nelson, 292 A.D.2d 397).
The defendant's remaining contentions are either unpreserved for appellate review or without merit.
SMITH, J.P., GOLDSTEIN, TOWNES and MASTRO, JJ., concur.