
    The People of the State of New York, Respondent, v Daniel Siler, Appellant.
   Appeal by defendant from a judgment of the Supreme Court, Westchester County, rendered March 22, 1979, convicting him of robbery in the first degree, upon a jury verdict, and imposing sentence. Judgment modified, on the law, by reducing the conviction of robbery in the first degree to a conviction of robbery in the third degree, and by vacating thé sentence imposed thereon. As so modified, judgment affirmed and case remitted to Criminal Term for resentence on the conviction of robbery in the third degree. The evidence adduced at trial failed to establish that the object actually possessed by the defendant during the commission of the robbery was employed by him in such a manner as to render it a "dangerous instrument” within the purview of subdivision 13 of section 10.00 of the Penal Law. Accordingly, defendant’s conviction of robbery in the first degree based upon his use or threatened immediate use of a "dangerous instrument” (see Penal Law, § 160.15, subd 3) cannot be sustained (see People v Castaldo, 72 AD2d 568; People v Cwikla, 60 AD2d 40, revd on other grounds 46 NY2d 434; see, also, People v Holmes, 71 AD2d 904; People v Green, 56 AD2d 610). However, the elements of robbery in the third degree were sufficiently established. Mollen, P. J., Hopkins, Titone and Mangano, JJ., concur.  