The People failed to prove a necessary element of the crime charged (Penal Law § 160.15 [2]). As the gun alleged in the indictment was not recovered, there was no evidence that it was loaded and operable and, thus, a deadly weapon (Penal Law § 10.00 [12]). The evidence was sufficient, however, to convict defendant of the lesser included offense of robbery in the third degree, which requires only forcible stealing (Penal Law § 160.05). Had defendant been charged...
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