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PEOPLE v. HOLMES

71 A.D.2d 904 (1979)

The People of the State of New York, Respondent, v. Anthony Holmes, Appellant

Appellate Division of the Supreme Court of the State of New York, Second Department.

August 13, 1979

Judgment reversed, on the law, count one of the indictment is dismissed, and a new trial is ordered as to the remaining counts of the indictment.

Count one of the indictment, under which defendant was convicted, charged defendant with robbery in the first degree in that he used or threatened the immediate use of a dangerous instrument (Penal Law, § 160.15, subd 3). That count must be dismissed. The evidence failed to show that the gun which defendant

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