The People of the State of New York, Respondent, v. Rodney Joseph, Appellant

The People of the State of New York, Respondent, v Rodney Joseph, Appellant. [MAJORITY] The hearing court properly declined to suppress the physical evidence recovered in the defendant’s apartment and the statement made to a police officer. We further conclude that the evidence, viewed in a light most favorable to the People (see, People v Contes, 60 NY2d 620), established the defendant’s guilt beyond a reasonable doubt with respect to the conviction of robbery in the first degree. However, we find that the evidence was legally insufficient to support a finding that the complaining witness suffered either substantial pain or an impairment of physical condition (Penal Law § 10.00 [9]). Accordingly, the conviction of robbery in the second degree (Penal Law § 160.10 [2] [a]) cannot stand (see, Matter of Philip A., 49 NY2d 198; People v McDowell, 28 NY2d 373). We have examined the defendant’s remaining contention and find it to be without merit. Brown, J. P., Rubin, Lawrence and Kooper, JJ., concur.