
    The People of the State of New York, Respondent, v Earnest Elder, Appellant.
    [612 NYS2d 1012]
   —Judgment unanimously modified on the law and as modified affirmed and matter remitted to Cayuga County Court for further proceedings in accordance with the following Memorandum: In order to establish defendant’s guilt of robbery in the first degree (see, Penal Law § 160.15 [3]), the People were required to prove that defendant actually possessed a dangerous instrument at the time of the crime (see, People v Pena, 50 NY2d 400, 407, cert denied 449 US 1087). Viewing the evidence in the light most favorable to the People (see, People v Contes, 60 NY2d 620), we conclude that the People failed to meet that burden with respect to the charge of robbery in the first degree in count II of the indictment. We modify the judgment, therefore, by reducing defendant’s conviction of robbery in the first degree under count II of the indictment to robbery in the third degree (see, Penal Law § 160.05) and by vacating the sentence imposed thereon, and we remit the matter for resentencing on that count (see, CPL 470.15 [2] [a]; 470.20 [4]).

We have examined defendant’s remaining contentions and have determined that none requires reversal. (Appeal from Judgment of Cayuga County Court, Contiguglia, J. — Robbery, 1st Degree.) Present — Green, J. P., Pine, Fallon, Callahan and Boehm, JJ.  