PEOPLE v. BENNETT

Judgment unanimously reversed on the law and indictment dismissed. Memorandum: The court erred in charging, over defendant's objection, that the jury could consider the crime of robbery in the third degree (Penal Law § 160.05) as a lesser included offense of robbery in the second degree under the first count of the indictment, which alleged that he forcibly stole property while aided by another person actually present (see, Penal Law § 160.10). There is no reasonable view of the evidence by which defendant was guilty of forcibly stealing property but that he was not aided by another person actually present (see, People v Glover, 57 N.Y.2d 61, 63; see also, People v Hicks, 134 A.D.2d 909, lv denied 70 N.Y.2d 956).