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PEOPLE v. McMILLAN

42 A.D.3d 345 (2007)

838 N.Y.S.2d 565

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. PHILIP McMILLAN, Appellant.

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

Decided July 12, 2007.

As the People concede, this robbery conviction was based on legally insufficient evidence, since the evidence did not establish the underlying larceny (People v Bleakley, 69 N.Y.2d 490, 495 [1987]). However, pursuant to the court's instruction, upon convicting defendant of robbery the jury stopped deliberating, and did not consider the first-degree assault count. Accordingly, defendant may be retried on that count (see People...

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