
    The People of the State of New York, Respondent, v Richard Castaldo, Appellant.
   Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered May 23, 1977, 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 second degree and by vacating the sentence imposed thereon. As so modified, judgment affirmed and case remitted to Criminal Term for resentence. Defendant was charged with robbery in the first degree based on the use or threatened immediate use of a dangerous instrument (see Penal Law, § 160.15, subd 3). Whether a particular object is a "dangerous instrument” (Penal Law, § 10.00, subd 13) must be determined by its use under the circumstances (People v Cwikla, 60 AD2d 40, revd on other grounds 46 NY2d 434). Here, there was not sufficient evidence to show that the unloaded sawed-off rifle was readily capable of causing death or serious injury under the circumstances in which it was used (see People v Green, 56 AD2d 610). The gun was brandished at the two robbery victims. However, it was unloaded and no attempt or threat was made to use the gun as a club. The capacity of the sawed-off rifle to inflict death or serious injury was not established in this case. Nevertheless, since the crime of robbery in the second degree was established beyond a reasonable doubt, the judgment has been modified accordingly. Lazer, J. P., Gulotta, Cohalan and Martuscello, JJ., concur.  