People v. Ayala

56 A.D.2d 561, 392 N.Y.S.2d 6, 1977 N.Y. App. Div. LEXIS 10577

Opinion

Judgment, Supreme Court, New York County, rendered on July 17, 1974, after a trial before Evans, J., and a jury, convicting defendant of the crimes of robbery in the first degree; rape in the first degree; two counts of burglary in the first degree; robbery in the second degree; assault in the second degree, and possession of a weapon, unanimously modified, on the law, to the extent of reversing defendant’s conviction of assault in the second degree and possession of a weapon and, as so modified, the judgment is affirmed. On this record defendant could not have committed the offenses of robbery in the second degree and burglary in the first degree without also committing the crime of assault in the second degree and he could not have committed the offenses of robbery and burglary in the first degree without committing the crime of possession of a weapon and the People so concede. Hence, such lesser included counts are dismissed. We have examined the other contentions raised by defendant upon this appeal and find them to be without merit. Concur—Kupferman, J. P., Birns, Capozzoli and Markewich, JJ.