Appeal by defendant from a judgment of the County Court, Queens County, rendered June 23, 1959, convicting him, after a jury trial, of robbery in the first degree and sentencing him to serve a term of 10 to 15 years. Judgment reversed on the law and the facts and a new trial ordered. The evidence was inconclusive as to whether the pistol used by the defendant in the commission of the crime was capable of being fired, and consequently a question of fact was presented for determination by the jury as to whether the defendant was "armed with a dangerous weapon" within the meaning of subdivision 1 of section 2124 of the Penal Law (cf. People v. Simons, 124 Misc. 28; People v. DeWitt, 285 App. Div. 1157; People v. McKenzie, 6 App. Div. 199, 200-201). It was error, therefore, for the trial court to refuse to charge the jury with respect to the lesser degrees of the crime of robbery (cf. People v. Mussenden, 308 N.Y. 558, 561-562).
Nolan, P.J., Christ and Pette, JJ., concur; Beldock and Kleinfeld, JJ., dissent and vote to affirm, with the following memorandum:
Defendant admitted that he stole the money in question with the use of the pistol. All the elements of the crime of robbery in the first degree were proved because the record presented ample evidence that the pistol was capable of being fired at the time of the robbery. Therefore, it was not error to refuse to charge the jury with respect to the lesser degrees of the crime.