Can a jury overturn a conviction of first degree robbery?

"The evidence of a first degree robbery, however, may well be deemed insufficient. Nonetheless the jury returned a verdict of guilty. But this legal failure of proof does not require reversal because an attempted larceny is a lesser included degree of the robbery count charged . . . The jury was instructed on and did find a higher degree of underlying felony than necessary. . . ." Respondent's Brief at 25, People v. Terry, 16 N.Y.2d 731, 209 N.E.2d 727, 262 N.Y.S.2d 111 (1965) (conviction affirmed).

Aside from our holding below that petitioner's attack on the sufficiency of the evidence to support a state court conviction does not raise a federal constitutional question, we of course are not bound by a concession or stipulation of the partieswhether made for purposes of argument or otherwiseas to the content of a record which itself is before us. See United States v. Ross, 464 F.2d 376, 381 (2 Cir. 1972).