Ordered that the judgment is modified, on the law, by vacating the conviction of robbery in the first degree, in violation of Penal Law § 160.15 (3), as charged in count one of the indictment, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
The defendant's conviction of robbery in the first degree ( see Penal Law § 160.15) must be vacated, as the People failed to present legally sufficient evidence that an electronic stun gun which was used by a codefendant, was a "dangerous instrument" (Penal Law § 160.15). Under the circumstances here, the People failed to offer evidence that a device of this type "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 Maio Ni, 293 AD2d 552; People v Nelson, 292 AD2d 397; cf. People v MacCary, 173 AD2d 646). Accordingly, the count of the indictment charging robbery in the first degree must be dismissed.
Contrary to the defendant's contention, he was not entitled to a missing witness charge ( see generally People v Savinon, 100 NY2d 192, 196; People v Gonzalez, 68 NY2d 424, 427; see also People v Evans, 56 AD3d 572; People v Marino, 21 AD3d 430, 432, cert denied 548 US 908).
The defendant's remaining contentions are without merit.