People v. Boyd

102 A.D.2d 774, 477 N.Y.S.2d 19, 1984 N.Y. App. Div. LEXIS 18938

Opinion

Judgment, Supreme Court, Bronx County (William Holland, J.), rendered June 16,1982, convicting defendant, after a jury trial, of robbery in the second degree and assault in the second degree, and sentencing him to concurrent indeterminate terms of imprisonment of 4VSs to 9 years on the robbery count and 2% to 5 years on the assault count, unanimously modified, on the law and the facts, to vacate the conviction of assault in the second degree and the sentence of 2Vz to 5 years imposed thereon, and otherwise affirmed. 1 The events giving rise to the conviction were that the defendant grabbed the victim around the neck, on a stairway in a Bronx apartment building, knocking her to the ground, punching her in the face and threatening her with death as he grabbed her bag and fled. 11 The assault in the second degree conviction must be vacated as necessarily encompassed in the concurrent crime of robbery in the second degree (People v Thompson, 59 AD2d 672). As that case holds, where a verdict is comprised of inclusory concurrent counts, a verdict of guilty on the greater count is deemed a dismissal of every lesser count (CPL 300.30, 300.40, subd 3, par [b]; People v Grier, 37 NY2d 847, 848, modfg 45 AD2d 688). H Under CPL 300.50, assault in the second degree is necessarily a lesser included offense of robbery in the second degree, which, by definition is committed whenever a defendant forcibly steals property and causes physical injury to any person who is not a participant in the crime (Penal Law, § 160.10, subd 2, par [a]). This issue could not have been waived because it would have been inappropriate to submit these counts in the alternative (CPL 300.40,300.50). Concur — Ross, J. P., Asch, Bloom, Fein and Alexander, JJ.